Bender v. United States Postal Service

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

LISA BENDER,

Plaintiff,

21-CV-924-LJV

v. DECISION & ORDER

UNITED STATES POSTAL SERVICE,

Defendant.

On August 12, 2021, the plaintiff, Lisa Bender, commenced this action under the

Rehabilitation Act of 1973 (“Rehabilitation Act”)1 and Title VII of the Civil Rights Act of

1964 (“Title VII”). Docket Item 1. She asserts claims for disability discrimination,

gender discrimination, and retaliation against the United States Postal Service (“USPS”)

arising from her time working for USPS as a mail carrier. Id. On July 24, 2023, USPS

moved for summary judgment, Docket Item 17; on October 5, 2023, Bender responded,

Docket Item 20; and on October 18, 2023, USPS replied, Docket Item 21.

For the reasons that follow, USPS’s motion for summary judgment is granted.

1 Bender invokes the Americans with Disabilities Act of 1990 (“ADA”). See

Docket Item 1 at ¶¶ 25-31. Because postal workers are federal employees, however,

see, e.g., Krul v. DeJoy, 2023 WL 8449589, at *1-2 (N.D.N.Y. 2023), her disability

discrimination claim properly arises under the Rehabilitation Act, see Pierre v.

Napolitano, 958 F. Supp. 2d 461, 466 n.1 (S.D.N.Y. 2013) (explaining that the

Rehabilitation Act is the “exclusive remedy” for a federal employee alleging disability

discrimination because the federal government is not an “‘employer’ for purposes of the

ADA” (citations omitted)).

BACKGROUND2

Bender worked for USPS as a rural mail carrier at the United States Post Office

in Attica, New York, from January 1998 until August 2020. Docket Item 17-2 at ¶¶ 7,

10, 17; Docket Item 20-1 at ¶¶ 7, 10, 17. Her responsibilities included sorting and

organizing mail, loading mail on a vehicle, and delivering mail. Docket Item 17-2 at

¶¶ 11-14; Docket Item 20-1 at ¶¶ 11-14. Bender’s lawsuit is based on two problems

that she experienced during her employment with USPS: (1) issues relating to her

health and (2) harassment by another USPS employee, Jesse Sarvis.

2 On a motion for summary judgment, the court construes the facts in the light

most favorable to the non-moving party. See Collazo v. Pagano, 656 F.3d 131, 134 (2d

Cir. 2011). “Each numbered paragraph in the moving party’s statement of material facts

may be deemed admitted for purposes of the motion unless it is specifically

controverted by a correspondingly numbered paragraph in the opposing statement.”

Loc. R. Civ. P. 56(a)(1). “[C]onclusory denials” of a moving party’s factual assertions

unsupported by “any record citations” are insufficient to contest those factual assertions.

See N.Y. State Teamsters Conf. Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d

640, 648-49 (2d Cir. 2005) (concluding that district court “reasonably deemed [the

moving party’s] statement of facts to be admitted” because the nonmoving party “offered

mostly conclusory denials of [the] factual assertions and failed to include any record

citations”).

The following facts, which are viewed in the light most favorable to Bender, are

taken from USPS’s statement of material facts, Docket Item 20-9; Bender’s response to

USPS’s statement of material facts, Docket Item 20-1; and the documents incorporated

by those statements. Bender’s response to USPS’s statement of material facts denies

many of USPS’s factual assertions on the ground that she “does not have a sufficient

basis to ascertain the truthfulness of [those] statement[s].” See id. at ¶¶ 33, 63-65, 70,

73, 88-93, 105, 114-15, 117, 125-28, 132-33; see also id. at ¶ 135 (stating merely

“Unknown”). But those conclusory denials, which are unsupported by citations to the

record, do not controvert USPS’s corresponding factual assertions, which are supported

by appropriate citations. See Express Servs, Inc., 426 F.3d at 648-49; see also Docket

Item 17-2 at ¶¶ 33, 63-65, 70, 73, 88-93, 105, 114-15, 117, 125-28, 132-33, 135.

Accordingly, those facts are deemed admitted under Local Rule of Civil Procedure

56(a)(1) and Express Services, Inc., 426 F.3d at 648-49.

I. HEALTH ISSUES

Bender suffers from “anxiety, emotional instability secondary to adjustment

disorder, and post-traumatic stress disorder.” Docket Item 17-2 at ¶ 134; Docket Item

20-1 at ¶ 134. As a result of those conditions, she is “unable to perform any of [her]

work[-]related duties.”3 Docket Item 17-2 at ¶ 135; Docket Item 17-11 at 9; see Docket

Item 20-1 at ¶ 135.

One USPS supervisor, Shawna Gilmartin, described Bender as an “excellent”

carrier who had “issues with attendance.” Docket Item 17-2 at ¶ 15; Docket Item 20-1 at

¶ 15. More specifically, Gilmartin said that Bender “called in a lot” and that the two met

“on some occasions to discuss . . . being regular in attendance.” Docket Item 17-2 at

¶ 16. Bender explains that her attendance problems were caused by her “health

issues,” Docket Item 20-1 at ¶ 16, which she shared with Gilmartin in their meetings,

Docket Item 17-12 at 13-14.

II. HARASSMENT BY SARVIS

During her employment with USPS, Bender had a series of unpleasant run-ins

with Jesse Sarvis, a mail carrier who joined the Attica Post Office around 2014. Docket

Item 17-2 at ¶ 20; Docket Item 20-1 at ¶ 20.

3 According to former Attica Postmaster Teresa L. Truglio, Docket Item 17-2 at

¶ 33, Bender never made “a reasonable accommodation request” to USPS regarding

her medical conditions, id. at ¶ 136. While Bender contends that an “accommodation

request does not need to be made when the disability is obvious,” she does not allege

that she ever made a written or verbal request for accommodations. See Docket Item

20-1 at ¶ 136.

A. The Initial Conflict

For the first few years that Bender and Sarvis worked together, the two were

“friendly” and “civil.” Docket Item 17-2 at ¶¶ 42-44; Docket Item 20-1 at ¶¶ 42-44. But

in or about 2017, “Bender began having problems with Sarvis performing what is known

. . . as a ‘hand-off.’” Docket Item 17-2 at ¶ 22; Docket Item 20-1 at ¶ 22. The hand-off,

which was meant to occur daily, involved Sarvis’s “bundl[ing]” and “hand[ing]” Bender

mail for two addresses that previously had been on his route “but were then switched to

Bender’s route.” Docket Item 17-2 at ¶¶ 23-27; Docket Item 20-1 at ¶¶ 23-27.

Before Sarvis became responsible for the hand-off, Bender had “never had a

problem with the ‘hand-off’ for the twenty years she had her route.” Docket Item 17-2 at

¶ 28; Docket Item 20-1 at ¶ 28. But “[o]nce Sarvis started on his route, the ‘hand-off’

was late on a daily basis.” Docket Item 17-2 at ¶ 29; Docket Item 20-1 at ¶ 29. In fact,

“Sarvis often would not complete the ‘hand-off’ until after Bender had already left the

Post Office to do her deliveries.” Docket Item 17-2 at ¶ 30; Docket Item 20-1 at ¶ 30.

Eventually, Sarvis began to give the hand-off to the “clerks,” who would pass it

on to Bender. Docket Item 17-2 at ¶ 31; Docket Item 20-1 at ¶ 31. According to USPS,

Sarvis was told to go through the clerks to minimize his contact with Bender. Docket

Item 17-2 at ¶ 33; see Docket Item 20-1 at ¶ 33. But that arrangement “did not resolve

the issue” because Sarvis sometimes “would not bundle the mail properly” or “would put

part of the ‘hand-off’ in one location and part of it in another location.” Docket Item 17-2

at ¶¶ 35-37; Docket Item 20-1 at ¶¶ 35-37.

The hand-off became so frustrating that Bender complained to “management,”

including Truglio and Daniel Kinyon, who succeeded Truglio as Attica Postmaster.

Docket Item 17-2 at ¶¶ 34, 38; Docket Item 20-1 at ¶ 38. But after Bender complained,

the situation worsened because Sarvis intentionally tried to “bother” Bender and treated

the hand-off like a “game.” Docket Item 17-2 at ¶¶ 39-40; Docket Item 20-1 at ¶¶ 39-40.

The issues with the hand-off went on for a “few years,” Docket Item 17-2 at ¶ 41; Docket

Item 20-1 at ¶ 41, and caused Bender’s and Sarvis’s relationship to become “uncivil,”

Docket Item 17-2 at ¶ 45; Docket Item 20-1 at ¶ 45.

B. The Confrontation Escalates

In or about December 2018, Sarvis’s confrontational behavior escalated: When

Bender came near him in the mail room, he would “slam[] plastic mail trays,” Docket

Item 17-2 at ¶ 51; Docket Item 20-1 at ¶ 51, and “turn the radio up very loud,” Docket

Item 17-2 at ¶ 52; Docket Item 20-1 at ¶ 52. Bender believes that around that time,

“Sarvis stole her ‘red card,’ a card that mail carriers display to show that they are out on

delivery.” Docket Item 17-2 at ¶ 53; Docket Item 20-1 at ¶ 53. And sometime before

2019, Sarvis whistled at Bender “between 15 and 20 times” in a sexual or flirtatious

manner. Docket Item 20-1 at ¶¶ 47-48 (citing Docket Item 17-4 at 44).

On one occasion, when Bender was talking with another coworker, Jeff Joya,

sometime around February 2019, “Sarvis turned the radio up very loud.” Docket Item

17-2 at ¶ 54; Docket Item 20-1 at ¶ 54. Joya asked Sarvis to lower the radio, and

“Sarvis responded by talking to himself and cursing loudly.” Docket Item 17-2 at ¶ 54;

Docket Item 20-1 at ¶ 54. The same day, Sarvis “made the ‘hand-off’ late again.”

Docket Item 17-2 at ¶ 55; Docket Item 20-1 at ¶ 55.

Joya called Truglio to complain about Sarvis, Docket Item 17-2 at ¶ 56; Docket

Item 20-1 at ¶ 56, and “[t]he next day, Truglio brought Joya, Sarvis, and Bender . . . into

her office to give statements” about the incidents, Docket Item 17-2 at ¶ 57; Docket Item

20-1 at ¶ 57. At one point “[w]hile Joya was in Truglio’s office, Sarvis looked at Bender”

and said “boom boom.” Docket Item 17-2 at ¶ 60; Docket Item 20-1 at ¶ 60. Bender

“immediately” reported the comment to Truglio because she understood it to be a

“threat.” Docket Item 17-2 at ¶¶ 61-62; Docket Item 20-1 at ¶¶ 61-62.

According to USPS, Truglio contacted the labor relations and human resources

departments “for guidance on how to handle Bender’s complaints” about Sarvis. Docket

Item 17-2 at ¶ 63; see Docket Item 20-1 at ¶ 63. Truglio also spoke to Sarvis, who

contended that he had turned up the radio to hear the music and “denied saying ‘boom

boom’ to Bender.” Docket Item 17-2 at ¶ 64; Docket Item 20-1 at ¶ 64. To resolve at

least part of the issue, Truglio instructed all Attica Post Office employees “that the

preset volume on the radio was not to be adjusted.” Docket Item 17-2 at ¶ 65; see

Docket Item 20-1 at ¶ 65. But Truglio told Bender that USPS “could do nothing” about

Sarvis’s “boom boom” comment because “Bender could not prove that [it] meant

anything.” Docket Item 17-2 at ¶ 66; Docket Item 20-1 at ¶ 66.

Truglio’s attempts to resolve the problem did not work; in fact, things got worse.

On April 23 and 24, 2019, Sarvis “quickly accelerated” his vehicle toward Bender—who

was loading her vehicle on the loading dock—“in an . . . attempt to frighten” her. Docket

Item 17-2 at ¶ 67; Docket Item 20-1 at ¶ 67; see Docket Item 17-4 at 57-59. On April

25, Bender did not enter the loading dock to test whether Sarvis would “accelerate[] or

gun[]” his vehicle without her present. Docket Item 17-2 at ¶ 68; Docket Item 20-1 at

¶ 68; see Docket Item 17-4 at 59. Sarvis did not “gun” his vehicle, Docket Item 17-2 at

¶ 68; Docket Item 20-1 at ¶ 68; see Docket Item 17-4 at 59, suggesting that Sarvis had

intended his rapid acceleration toward Bender as a “personal threat.” Docket Item 17-2

at ¶ 70; Docket Item 20-1 at ¶ 70. Bender “immediately complained to Truglio” about

Sarvis’s conduct. Docket Item 17-2 at ¶ 69; Docket Item 20-1 at ¶ 69.

According to USPS, when Truglio questioned Sarvis about “why he was revving

the engine,” Sarvis replied that his actions were not a threat because “he always gives

the truck gas when he starts it to prevent it from stalling.”4 Docket Item 17-2 at ¶ 70;

see Docket Item 20-1 at ¶ 70. Truglio shared Sarvis’s explanation with Bender, but

Bender “contended that Sarvis only revved his vehicle when she was near,” Docket Item

17-2 at ¶¶ 71-72; Docket Item 20-1 at ¶¶ 71-72. After that, Truglio told Sarvis and

Bender that they should not load their vehicles at the same time. Docket Item 17-2 at

¶ 73; see Docket Item 20-1 at ¶ 73.

C. Bender’s Meeting with Truglio and Sarvis and Sarvis’s Continued

Harassment

In May 2019, Bender met with Truglio and Sarvis. Docket Item 17-2 at ¶ 74;

Docket Item 20-1 at ¶ 74. Both sides agree that when the meeting began, “Bender

asked Sarvis why he had a problem with her.” Docket Item 17-2 at ¶¶ 75, 78; Docket

Item 20-1 at ¶¶ 75, 78. But the parties’ accounts of the meeting diverge after that.

According to Bender, Sarvis responded to her question “by lunging at Truglio”

and calling Bender a “f[******] liar and a f[******] fake.” Docket Item 17-2 at ¶ 76; Docket

Item 20-1 at ¶ 76. She says that Truglio then “threatened Sarvis with termination if he

continued to harass Bender.” Docket Item 17-2 at ¶ 77; Docket Item 20-1 at ¶ 77.

4 Truglio had seen “other carriers . . . rev the engine when starting [USPS]

vehicles,” which “sometimes stall upon starting.” Docket Item 17-2 at ¶ 20.

Truglio’s version of the meeting differs: She says that after Bender asked Sarvis

why he disliked her, Sarvis only “asked if he really had to be in there.” Docket Item 17-2

at ¶ 78. She says that Sarvis then became irritated and called Bender a “f[******] fake

and a f[******] liar” but that Bender “chuckled” at Sarvis’s irritation. Id. Finally, Truglio

says that she “advised” Bender and Sarvis that they must “work together” and “treat

each other with respect” and that harassment or threats “would not be tolerated.” Id.

Despite Truglio’s warnings, Sarvis’s conduct continued. On or about May 24,

2019, Bender saw Sarvis “lurk[ing] in a bank parking lot across from the Post Office”

and staring at her “while she was unloading her vehicle.” Docket Item 17-2 at ¶ 93; see

Docket Item 17-4 at 69-71; Docket Item 20-1 at ¶ 93. Bender reported Sarvis’s “creepy”

behavior to either Truglio or Gilmartin. Docket Item 17-4 at 69-72; see Docket Item 17-2

at ¶¶ 94-96; Docket Item 20-1 at ¶¶ 94-96. A few days later, “Sarvis walked past

Bender and glared at her with an angry look on his face.” Docket Item 17-2 at ¶ 102;

Docket Item 20-1 at ¶ 102.

In July 2019, another USPS employee “witnessed Sarvis screaming and

swearing to nobody while loading his [vehicle],” Docket Item 17-2 at ¶ 108; Docket Item

20-1 at ¶ 108, and Bender heard Sarvis “saying out loud ‘fat, fugly, and fake’” while the

two loaded their vehicles. Docket Item 17-2 at ¶ 109; Docket Item 20-1 at ¶ 109.

In August 2019, “Sarvis banged a thick plastic mail tray on his cart” while he was

“right behind” Bender, causing “a loud bang” “like a gunshot.” Docket Item 17-2 at

¶ 110; Docket Item 20-1 at ¶ 110; see Docket Item 17-3 at 86-87. Bender became

“upset” and developed neck pain and a headache as a result of the noise, so she left

work. Docket Item 17-4 at 87-89; see Docket Item 17-2 at ¶ 112; Docket Item 20-1 at

¶ 112. “Bender then reported this incident to the local police.” Docket Item 17-2 at

¶ 113; Docket Item 20-1 at ¶ 113. After Bender told her husband about the incident, he

went to the Post Office looking for Sarvis. Docket Item 17-4 at 89; see Docket Item 17-

2 at ¶ 114; Docket Item 20-1 at ¶ 114. But the United States Postal Inspection Service

ultimately found that “there was no bullying or harassment” of Bender by Sarvis. Docket

Item 17-2 at ¶ 117; see Docket Item 17-8 (investigative report); see also Docket Item

20-1 at ¶ 117.

D. Sarvis’s Interactions with Others and Arrest

Bender was not the only person to struggle with Sarvis. Several other USPS

employees were afraid of him as well, Docket Item 17-2 at ¶ 101; Docket Item 20-1 at

¶ 101, and once, “Gilmartin brought her dog into the [P]ost [O]ffice to protect herself

from [him],” Docket Item 17-2 at ¶¶ 97, 99; Docket Item 20-1 at ¶¶ 97, 99.

USPS customers also took issue with Sarvis’s conduct. Docket Item 17-2 at

¶ 80; Docket Item 20-1 at ¶ 80. They complained that he (1) swore and yelled “when a

package would not fit in [a] mailbox,” Docket Item 17-2 at ¶ 80; Docket Item 20-1 at

¶ 80; (2) was found sleeping in his mail truck, Docket Item 17-2 at ¶ 81, Docket Item 20-

1 at ¶ 81; (3) “walked into a . . . customer’s house uninvited,” Docket Item 17-2 at ¶ 82;

Docket Item 20-1 at ¶ 82; and (4) drove recklessly “while on the job,” Docket Item 17-2

at ¶ 83; Docket Item 20-1 at ¶ 83. And at some point, “Sarvis . . . drove his [USPS]

vehicle onto the property of Attica High School and gave the middle finger to a female

student.” Docket Item 17-2 at ¶ 84; Docket Item 20-1 at ¶ 84. “Bender also believes

that Sarvis gave the middle finger to his elderly female neighbor while on the job.”

Docket Item 17-2 at ¶ 85; Docket Item 20-1 at ¶ 85.

Sarvis’s objectionable behavior was not limited to his employment. Apparently,

he had “an ongoing dispute” with an ex-girlfriend and her son and “would drive by” his

ex-girlfriend’s home and workplace to “yell and swear” at her and her son. Docket Item

17-2 at ¶ 86; Docket Item 20-1 at ¶ 86. He harassed some of his neighbors in a similar

manner, Docket Item 17-2 at ¶ 87; Docket Item 20-1 at ¶ 87, and the Attica Police Chief

said that Sarvis “attempt[ed] to harass and intimidate” Attica Police Officers as well.

Docket Item 17-2 at ¶¶ 88-89; see Docket Item 20-1 at ¶¶ 88-89.

Sarvis’s conduct even crossed the line into the criminal: At some point, he was

arrested for “theft of a toolbox.” Docket Item 17-2 at ¶ 106; Docket Item 20-1 at ¶ 106.

When Sarvis was arrested, “the police found narcotics in his pocket.” Docket Item 17-2

at ¶ 106; Docket Item 20-1 at ¶ 106. Sarvis eventually was “prosecuted” and “sent to

jail . . . for a few months.” Docket Item 17-2 at ¶ 107; Docket Item 20-1 at ¶ 107.

E. Sarvis’s Return to Work

At some point, Gilmartin “tried to terminate Sarvis” based on his tardiness,

reckless driving, and criminal conviction. Docket Item 17-2 at ¶¶ 90-91, 119; Docket

Item 20-1 at ¶ 119; see Docket Item 20-1 at ¶¶ 90-91. But “the union for mail carriers

fought to keep Sarvis employed,” Docket Item 17-2 at ¶ 92; see Docket Item 20-1 at

¶ 92, so “[o]n or about April 1, 2020, Gilmartin informed Bender that Sarvis was out of

jail . . . and would be returning to work,” Docket Item 17-2 at ¶ 118; Docket Item 20-1 at

¶ 118.

After Sarvis returned to work, he took “an extremely long time loading his

vehicle.” Docket Item 17-2 at ¶ 120; Docket Item 20-1 at ¶ 120. According to Bender,

Sarvis “intentionally” worked slowly to prevent Bender from loading her own vehicle

“because [USPS] management required them to load separately to avoid conflict.”

Docket Item 17-2 at ¶¶ 120-21; Docket Item 20-1 at ¶¶ 120-21.

On or about July 3, 2020, Sarvis “cleared his throat loudly” when “Bender passed

near [him].” Docket Item 17-2 at ¶ 122; Docket Item 20-1 at ¶ 122. A few days later, on

July 7, 2020, “Sarvis again ‘gunned’ his . . . vehicle in the loading dock area when

Bender was nearby.” Docket Item 17-2 at ¶ 123; Docket Item 20-1 at ¶ 123. Bender

says that the same day, “Sarvis tried to run her off the road while they were in their

respective vehicles performing their work duties.” Docket Item 17-2 at ¶ 124; Docket

Item 20-1 at ¶ 124. But an investigation “could not confirm Sarvis[’s] running Bender off

the road.” Docket Item 17-2 at ¶¶ 127-28; see Docket Item 17-9 (investigative report);

see Docket Item 20-1 at ¶¶ 127-28.

F. Bender’s Departure from USPS

“On July 22, 2020, Bender’s vehicle broke down while [she was] delivering her

route and she called AAA for assistance.” Docket Item 17-2 at ¶ 129; Docket Item 20-1

at ¶ 129. Bender’s “anxiety increased exponentially” in the hours it took AAA to arrive,

“and she told her manager that she needed to go home.” Docket Item 17-2 at ¶ 130;

Docket Item 20-1 at ¶ 130.

Bender’s left her employment on August 4, 2020, after an interaction with Kinyon.

Docket Item 17-2 at ¶ 131; Docket Item 20-1 at ¶ 131. According to Bender, Kinyon

“unfairly assigned her a large number of catalogs and magazines to deliver that she

believed her substitute . . . should have delivered the previous day.” Docket Item 17-2

at ¶ 131; Docket Item 20-1 at ¶ 131. Bender felt that the assignment was retaliation “for

complaining of Sarvis’s discriminatory conduct.” Docket Item 20-1 at ¶ 133. Kinyon, on

the other hand, says he did not have an opportunity to ask the substitute to deliver the

magazines and that he told Bender she could deliver “just a few each day until they

were gone.” Docket Item 17-2 at ¶ 132. Bender “did not like that idea, walked out,” and

did not return. Id.

III. BENDER’S ADMINISTRATIVE COMPLAINT

Bender contacted USPS’s Equal Employment Opportunity (“EEO”) office on

August 18, 2020, and filed an administrative complaint on November 24, 2020,

asserting “claims of gender discrimination, retaliation, and disability discrimination.”

Docket Item 17-2 at ¶¶ 138-41; Docket Item 20-1 at ¶¶ 138-41. USPS dismissed

Bender’s complaint on May 14, 2021, Docket Item 17-2 at ¶ 143; Docket Item 20-1 at

¶ 143, and Bender commenced this action a few months later, Docket Item 1.

LEGAL PRINCIPLES

“A motion for summary judgment may be granted ‘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.’” Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (quoting Fed. R. Civ.

P. 56(a)). “Summary judgment is appropriate when ‘there can be but one reasonable

conclusion as to the verdict,’ i.e., ‘it is quite clear what the truth is,’ and no rational

factfinder could find in favor of the nonmovant.” Id. (first quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986), then quoting Poller v. Columbia Broad. Sys.,

Inc., 368 U.S. 464, 467 (1962)). Conversely, “[s]ummary judgment should be denied if,

when the party against whom summary judgment is sought is given the benefit of all

permissible inferences and all credibility assessments, a rational factfinder could resolve

all material factual issues in favor of that party.” Id. “In deciding such a motion, the

court cannot properly make credibility determinations or weigh the evidence.” Id.

DISCUSSION

I. TITLE VII CLAIMS

A. Statute of Limitations

“Before bringing a federal lawsuit under Title VII, a federal government employee

must timely exhaust the administrative remedies at [her] disposal.” Tassy v. Buttigieg,

51 F.4th 521, 530-31 (2d Cir. 2022) (citations and internal quotation marks omitted); see

Brown v. Gen. Servs. Admin., 425 U.S. 820, 833 (1976) (observing that Title VII

imposes “rigorous administrative exhaustion requirements and time limitations”). Postal

workers, such as Bender, are federal government employees. See, e.g., Krul, 2023 WL

8449589, at *1-2.

“EEOC regulations establish the applicable administrative procedures that a

federal employee must exhaust prior to filing suit.” Tassy, 51 F.4th at 531 (citation and

internal quotation marks omitted). Under those regulations, “a claimant ‘must initiate

contact with an EEO counselor within 45 days of the date of the matter alleged to be

discriminatory.’” Id. (alterations omitted) (quoting 29 C.F.R. § 1614.105(a)(1)). “This

45-day period serves as a statute of limitations; thus, as a general rule, claims alleging

conduct that occurred more than 45 days prior to the employee’s initiation of

administrative review are time[ ]barred.” Id. (citation and internal quotation marks

omitted). “In considering the timeliness of discrete act claims, [the Second Circuit has]

held that each actionable discrete act occurs on the day that it happened.” Id.

(alteration, citation, and internal quotation marks omitted).

Bender contacted USPS’s EEO office on August 18, 2020. Docket Item 17-2 at

¶¶ 138-39; Docket Item 20-1 at ¶¶ 138-39. Therefore, USPS says, “all of Bender’s Title

VII gender discrimination and retaliation claims must be dismissed as untimely except

her claims relating to the incidents of July 7, July 22, and August 4, 2020”—that is, the

only claims that accrued on or after July 4, 2020, which was 45 days before the date

she contacted the EEO office. Docket Item 17-1 at 6.

Bender responds that her discrimination and retaliation claims based on acts that

occurred before July 4, 2020, are saved by the continuing violation doctrine, Docket

Item 20 at 4-5, which “allows courts to consider conduct that would ordinarily be time

barred as long as the untimely incidents represent an ongoing unlawful employment

practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 (2002) (citation and

internal quotation marks omitted). But Bender cites outdated caselaw and ignores more

recent Supreme Court precedent: In Morgan, the Supreme Court held that while the

continuing violation doctrine may apply to hostile work environment claims, id. at 115-

22, “discrete discriminatory acts are not actionable if time barred, even when they are

related to acts alleged in timely filed charges,” id. at 113. In other words, because

“[e]ach discrete discriminatory [or retaliatory] act starts a new clock for filing charges

alleging that act,” the continuing violation doctrine does not apply to discrimination or

retaliation claims. Id.; see Harris v. Bd. of Educ. of the City Sch. Dist. of the City of

N.Y., 230 F. Supp. 3d 88, 98 (E.D.N.Y. 2017) (“The ‘continuing violation’ doctrine

applies only to harassment claims. It is inapplicable to discrimination and retaliation

claims.” (citation omitted)).

For that reason, Bender’s argument that the continuing violation doctrine saves

her untimely discrimination and retaliation claims fails, and her gender discrimination

and retaliation claims based on incidents that occurred before July 4, 2020, are

dismissed.

B. Failure to State a Gender Discrimination or Retaliation Claim5

Title VII claims for discrimination and retaliation are analyzed under the “burden-

shifting evidentiary framework” set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Littlejohn v. City of New York, 795 F.3d 297, 312, 316 (2d Cir. 2015). The

first step of that framework requires a plaintiff to “establish a prima facie case” of

discrimination or retaliation. Id. at 307.

To establish a prima facie case of discrimination, a plaintiff must show “(1) that

she is a member of a protected class; (2) that she was qualified for employment in the

position; (3) that she suffered an adverse employment action; and [(4) that she has]

some minimal evidence suggesting an inference that the employer acted with

discriminatory motivation.” Id. To establish a prima facie case of retaliation, “a plaintiff

must present evidence that shows (1) participation in a protected activity; (2) that the

defendant knew of the protected activity; (3) an adverse employment action; and (4) a

5 Because Bender’s gender discrimination and retaliation claims arising from

incidents before July 4, 2020, are time barred, this Court considers only the incidents

that occurred after that date when evaluating whether she has stated a claim for

discrimination or retaliation. Those incidents are: (1) Bender’s interactions with Sarvis

on July 7, 2020, see Docket Item 17-2 at ¶¶ 123-24; Docket Item 20-1 at ¶¶ 123-24; (2)

her vehicle problems on July 22, 2020, see Docket Item 17-2 at ¶¶ 129-30; Docket Item

20-1 at ¶¶ 129-30; and (3) her interaction with Kinyon and subsequent resignation on

August 4, 2020, see Docket Item 17-2 at ¶¶ 131-33; Docket Item 20-1 at ¶¶ 131-33.

causal connection between the protected activity and the adverse employment action.”

Id. at 315-16 (citation and internal quotation marks omitted).

An adverse employment action is “a materially significant disadvantage with

respect to the terms of the plaintiff’s employment.” Id. at 312 n.10 (alterations and

emphasis omitted) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d

Cir. 2004)). An action must be “more disruptive than a mere inconvenience or an

alteration of job responsibilities” to be an adverse employment action. Id. (quoting

Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). “Examples of

materially significant disadvantages include termination, demotion, a less distinguished

title, a material loss of benefits, or significantly diminished material responsibilities.” Id.

(alternations and internal quotation marks omitted) (citing Galabya, 202 F.3d at 640).

USPS argues that Bender has not established a prima facie case of

discrimination or retaliation because she has not shown that she suffered an adverse

employment action. Docket Item 17-1 at 8-9, 19. More specifically, USPS says that it

“took no action whatsoever against Bender, let alone an adverse action” such as a

“suspension or termination.” Id. Bender responds that USPS’s failure to adequately

address her complaints about Sarvis’s harassment is the adverse employment action

upon which her claims are based. Docket Item 20 at 6-7, 12-13; see Docket Item 1 at

¶ 36 (alleging that Bender “suffered an adverse employment action” when USPS “failed

to respond to [her] complaints of harassment”).

The only complaint Bender made about Sarvis’s harassment in the relevant time

period involved his threatening operation of a vehicle on July 7, 2020. See Docket Item

17-2 at ¶¶ 123-24; Docket Item 20-1 at ¶¶ 123-24. While “unchecked retaliatory co-

worker harassment” may constitute an adverse employment action if an employer

allows one co-worker to harass another “because she engaged in protected activity,”

Bender has presented no evidence that Sarvis’s July 7 harassment—or USPS’s alleged

failure to address that harassment—was retaliation for Bender’s engaging in a protected

activity. See Drouillard v. Sprint/United Mgmt. Co., 375 F. Supp. 3d 245, 270 (finding

that plaintiff failed to establish she had suffered an adverse employment action based

on alleged harassment by her co-worker). Nor does she point to any facts suggesting

that any failure to adequately address the harassment stemmed from her gender or

disability.6

In short, Bender has not adequately shown that USPS imposed “a materially

significant disadvantage” on her on or after July 4, 2020. See Littlejohn, 795 F.3d at

312 n.10. She therefore has failed to establish prima facie cases of sex discrimination

or retaliation under Title VII, and those claims are dismissed.

C. Hostile Work Environment

Bender does not assert a hostile work environment claim, see Docket Item 1, and

this Court is not inclined sua sponte to grant her leave to amend at this late stage.

Nevertheless, the Court addresses USPS’s argument that Bender’s claims fail even

when construed as a hostile work environment claim. See Docket Item 17-1 at 10-17.

“Under Title VII, an employee seeking to bring a hostile work environment claim

must show [1] that she . . . is a member of a protected class; [2] that she suffered

6 What is more, Sarvis’s harassment on that day was not unchecked: Bender’s

complaint led to an investigation, see Docket Item 17-9, suggesting that USPS took her

complaint seriously and responded appropriately rather than acting adversely against

her for discriminatory or retaliatory reasons.

unwelcome harassment; [3] that she was harassed because of her membership in a

protected class; and [4] that the harassment was sufficiently severe or pervasive to alter

the conditions of employment and create an abusive work environment.” Monterroso v.

Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 584 (S.D.N.Y. 2008). “[I]t is ‘axiomatic’

that in order to establish a sex-based hostile work environment under Title VII, a plaintiff

must demonstrate that the conduct [at issue] occurred because of her sex.” Alfano v.

Costello, 294 F.3d 365, 374 (2d Cir. 2002) (citation omitted).

USPS argues that Bender cannot “prove that Sarvis’s alleged harassment of her

was because of sex.” Docket Item 17-1 at 11. Indeed, Bender’s evidence that Sarvis

harassed her because of her gender is scant: The only conduct she complains of that

could be interpreted as gender-based is Sarvis’s “wolf-whistles,” see Docket Item 20 at

8-9, which alone are not “sufficiently severe or pervasive” to create a hostile work

environment, see Monterroso, 591 F. Supp. 2d at 584; see also Agosto v. N.Y. City

Dep’t of Educ., 982 F.3d 86, 102-04 (2d Cir. 2020) (teacher’s allegations that principal

would “stare” and “sneer” at him and “cat-call” him were “insufficient to create an

objectively hostile workplace”). And Bender points to nothing else—for example,

comments about her gender—that might connect Sarvis’s wolf-whistles to his other

harassment. See generally Docket Item 20. What is more, notwithstanding Bender’s

assertion that Sarvis treated other women badly, see id. at 8-9, it appears that Sarvis

treated those around him badly regardless of their genders, see Docket Item 21 at 6

(citing examples of “Sarvis’s harassment of men”).7

7 Bender admits several of the instances of Sarvis treating men badly. See

Docket Item 20-1 at ¶¶ 54, 86-87. Accordingly, there is no genuine question of fact as

to whether Sarvis harassed both men and women.

In short, viewed in the light most favorable to Bender, the facts of this case would

not support a hostile work environment claim—even if Bender had pleaded one.

II. REHABILITATION ACT CLAIM

“To establish a prima facie case of discrimination under the Rehabilitation Act

based on an employer’s failure to accommodate a disability, a plaintiff must

demonstrate that (1) [she] is a person with a disability under the meaning of the statute

. . . ; (2) an employer covered by the statute had notice of [her] disability; (3) with

reasonable accommodation, [she] could perform the essential functions of the job at

issue; and (4) the employer has refused to make such accommodations.” Costabile v.

N.Y. City Health and Hosps. Corp., 951 F.3d 77, 81 (2d Cir. 2020) (per curiam) (citation,

italics, and internal quotation marks omitted).

“Generally, it is the responsibility of the individual with a disability to inform the

employer that an accommodation is needed.” Id. (alteration and citation omitted). But

“where ‘the disability is obvious—which is to say, if the employer knew or reasonably

should have known that the employee was disabled’[—]the employer is obligated to

engage in ‘an interactive process with [its] employees and in that way work together to

assess whether an employee’s disability can be reasonably accommodated.’” Id.

(quoting Brady v. Wal-Mart, 531 F.3d 127, 135 (2d Cir. 2008)). “To trigger the duty to

engage [in] the interactive accommodations process, the employer must have known, or

have had sufficient notice such that the employer reasonably should have known, that

the employee has a disability within the meaning of the [Rehabilitation] Act, as opposed

to a mere impairment.” Id. (citing Brady, 531 F.3d at 134).

Bender bases her disability discrimination claim on USPS’s alleged failure to

reasonably accommodate her mental health conditions. See Docket Item 1 at ¶¶ 28-30.

USPS argues that Bender’s Rehabilitation Act claim fails for two reasons: (1) Bender did

not have a disability within the meaning of the Rehabilitation Act and (2) USPS did not

refuse to provide Bender reasonable accommodations. Docket Item 17-1 at 19-22. The

Court addresses only the second of those arguments.

USPS suggests that because Bender never requested reasonable

accommodations for her alleged disability, it could not have possibly denied her those

accommodations. Id. at 21-22. Bender responds that “a request [for reasonable

accommodations] is not required” when the employer “knew or reasonably should have

known that the employee was disabled.” Docket Item 20 at 14-15 (second excerpt

quoting Brady, 531 F.3d at 135). And, she says, USPS knew about her alleged

disability because she shared it with her supervisors. Id. at 15. But Bender’s argument

misses the mark.

Bender is correct that some people with disabilities need not request reasonable

accommodations to have a viable failure to accommodate claim. For example, the

plaintiff in Brady had cerebral palsy, a disability that “manifested itself” in myriad visible

ways. Brady, 531 F.3d at 130. Although the plaintiff did not request reasonable

accommodations from his employer, the Second Circuit allowed him to pursue a failure

to accommodate claim because the employer should have known he required

accommodations. Id. at 134-36.

Here, on the other hand, Bender has not established that USPS should have

known that she was disabled or that she required reasonable accommodations for her

mental health conditions. She is not like the plaintiff in Brady, whose disability was

visible. And while she alleges that she shared her mental health diagnoses with her

supervisors, Docket Item 20 at 15, that does not show that USPS knew she was

disabled: Mental health conditions vary in severity, and an outside observer generally

does not know how severe a mental illness is without being told. So absent any

evidence that Bender communicated the severity of her mental health conditions, this

Court declines to find that those conditions “trigger[ed] the duty to engage the

interactive accommodations process.” See Costabile, 951 F.3d at 81; see id. at 82

(finding that plaintiff failed to state a reasonable accommodation claim because he

“[n]ever requested an accommodation,” despite the fact that the defendants knew the

plaintiff had multiple sclerosis and knew that he “took work-related disability leave on

multiple prior occasions”). Accordingly, Bender’s failure to request reasonable

accommodations is fatal to her disability discrimination claim.

Bender’s Rehabilitation Act claim therefore is dismissed.

CONCLUSION

For the reasons stated above, USPS’s motion for summary judgment, Docket

Item 17, is GRANTED. The Clerk of the Court shall close this case.

SO ORDERED.

Dated: February 2, 2024

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE