Opinion
19-CV-06553 (PGG)(SN) 20-CV-02956 (PGG)(SN)
02-10-2022
DANNY LEE, Plaintiff, v. ANDREW SAUL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant. DANNY LEE, Plaintiff, v. ANDREW SAUL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE PAUL G. GARDEPHE:
Plaintiff Danny Lee (“Plaintiff” or “Lee”) brings this employment discrimination action against Andrew Saul (“Defendant”), the former Commissioner of the Social Security Administration (“SSA”). Plaintiff, proceeding pro se, asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (“ADA”), and the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq., (“FMLA”). Additionally, Lee alleges that Defendant violated the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (“No FEAR Act”), 5 U.S.C. § 2301 et seq., and his right to union representation at investigatory interviews pursuant to National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975), and obstructed justice by deleting emails and destroying evidence. Defendant moves to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. I recommend that the Court grant Defendant's motion to dismiss.
BACKGROUND
Between 2009 and 2016, Lee was employed by the Social Security Administration as a Legal Assistant and Case Intake Specialist. ECF No. 29, Second Amended Complaint (“Sec. Am. Compl.”) at 16-24. He has filed three cases alleging that the SSA discriminated against him, failed to accommodate his disabilities, and retaliated against him when he sought legal recourse. In the first suit, Lee v. Colvin, No. 15-cv-1472 (KPF), 2017 WL 486944 (S.D.N.Y. Feb. 6, 2017) (Lee I), only Lee's retaliation claim under the Rehabilitation Act survived Defendant's motion to dismiss. Id. at 16. Judge Failla subsequently granted Defendant's motion for summary judgment on the remaining claim, which related to events that occurred in June 2011 (Lee's assignment to process paper cases), 2019 WL 367834, at *1, *4 (S.D.N.Y. Jan. 30, 2019), and the Court of Appeals affirmed (802 Fed.Appx. 663, 664 (2d Cir. 2020)). While the appeal was pending, Lee filed a second action. Lee v. Saul, No. 19-cv-6553 (PGG)(SN), 2020 WL 5836513, at *1 (S.D.N.Y. Sept. 30, 2020) (Lee II). Defendant moved to dismiss, and the Court granted the motion in its entirety. Id. at *1. Although the Court expressed doubt that the Complaint's defects could be cured, Plaintiff was granted leave to amend his claims under the Rehabilitation Act. Id. at *9.
On April 10, 2020, Lee filed his third case. ECF No. 2, Complaint. The Court subsequently consolidated the 2019 and 2020 cases. ECF No. 27. Lee filed his Second Amended Complaint on April 12, 2021. ECF No. 29. Lee alleges generally that the SSA discriminated against him on the basis of his disabilities - hip pain and depression - and also engaged in unlawful disparate treatment, retaliation, and harassment in violation of the Rehabilitation Act, the ADA, and the FMLA. Sec. Am. Compl. at 3-5. He also claims that the SSA did not promote him, did not accommodate his disabilities, denied him leave, and suspended him. Id. at 5. In attached documents, Lee describes allegations against the SSA and provides a detailed timeline of his employment beginning in 2009 and ending in 2016. Id. at 13-24.
In addition to the underlying complaints, two right-to-sue letters, the first dated May 31, 2019, and the second dated January 14, 2020, are attached to the Second Amended Complaint. Id. at 29-36. The first letter denied Lee's request for reconsideration of a prior decision concluding that the SSA neither discriminated against him on the basis of disability by failing “to provide him with appropriate reasonable accommodations for his disability beginning on May 20, 2015” nor “subjected him to harassment based on disability and reprisal beginning May 20, 2015 and ongoing, in terms of job duties including time and attendance, training, and reasonable accommodation.” Id. at 29-30. The second letter concerned three complaints Lee filed in April and September 2016 relating to a three-day suspension in February 2016, alleged harassment between February 1 and August 30, 2016, the denial of his request for Leave Without Pay and charge of Absent Without Leave on multiple occasions in 2016, the failure to provide a timely response to his request for a hardship transfer, and his suspension on August 15, 2016. Id. at 3334. The EEOC affirmed the denial of administrative relief and informed Lee of his right to file a civil action. Id. at 35-36.
The Defendant moved to dismiss the Complaint pursuant to Rule 12(b)(6). ECF No. 34. Plaintiff submitted an objection, attaching documents relevant to the events in question and a portion of a transcript of a court hearing. See ECF No. 38.
DISCUSSION
I. Legal Standard
A complaint must be dismissed if it fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a legally sufficient claim, a complaint must plead “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In evaluating a complaint under this standard, a court must accept as true the well-pleaded factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). While the plausibility standard “does not require detailed factual allegations, ” it “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 709 (2d Cir. 2002) (stating that a court need not give “credence to [a] plaintiff's conclusory allegations”). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient to survive a motion to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
Where, as here, a plaintiff proceeds pro se, his complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). When considering a motion to dismiss a pro se complaint, “courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s].” Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002).
A complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. See, e.g., Hart v. FCI Lender Servs., Inc., 797 F.3d 219, 221 (2d Cir. 2015) (citing Fed.R.Civ.P. 10(c) (“A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”)). A complaint does not include allegations raised for the first time in opposition to a motion to dismiss and such allegations do not automatically amend the complaint. See O'Brien v. Nat'l Prop. Analysts Partners, 719 F.Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”); Capers v. Kirby Forensic Psychiatric Ctr., 13-cv-6953 (AJN), 2016 WL 817452, at *2 (S.D.N.Y. Feb. 25, 2016) (applying rule against amending complaint by the briefs to pro se plaintiff). A court may, however, consider new allegations in an opposition brief “in determining whether to grant [the plaintiff] leave to file a[n] . . . Amended Complaint.” Capers, 2016 WL 817452, at *2; see also Jordan v. Chase Manhattan Bank, 91 F.Supp.3d 491, 500 (S.D.N.Y. 2015).
II. Rehabilitation Act Claims
Under the Rehabilitation Act, Plaintiff checked boxes indicating allegations of failure to hire, unlawful termination, failure to promote, failure to provide reasonable accommodations, disparate treatment, retaliation, and a hostile work environment. Sec. Am. Compl. at 5. He further specifies that the SSA denied him leave and suspended him and caused permanent damage to his hip by failing to provide reasonable accommodations. Id. I first consider Defendant's argument that Plaintiff failed to exhaust most of his claims, and then address the potential claims in turn.
A. Exhaustion
“The Rehabilitation Act requires that an employee exhaust certain administrative requirements prior to filing a suit in district court.” Hodges v. Att'y Gen. of U.S., 976 F.Supp.2d 480, 490 (S.D.N.Y. 2013). Under EEOC regulations, the “employee must first seek EEO counseling within forty-five days of the allegedly discriminatory act.” Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000); see also 29 C.F.R. §1614.105(a)(1). The regulations require that that counselor conduct a final interview with the aggrieved employee within 30 days of the initial contact, unless he or she agrees in writing to postpone the final interview and extend the counseling period for an additional period of no more than 60 days. 29 C.F.R. §§ 1614.105(d)-(e). If the complaint is not resolved, then the employee may file a complaint with “the agency that allegedly discriminated against” them “within 15 days of receipt of notice.” 29 C.F.R. §§ 1614.106(a)-(b). “In order for the court to consider a particular claim of alleged discrimination, it must have been either explicitly raised during the EEO process or be reasonably related to claims that were.” Hodges, 976 F.Supp.2d at 490 (internal quotation omitted). Retaliation claims and claims where a plaintiff “alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge” are also considered to be reasonably related to claims asserted in an EEO complaint. Deravin v. Kerik, 335 F.3d 195, 201 n.3 (2d Cir. 2003) (citation omitted). Unless the employee has exhausted his administrative remedies, his employment discrimination claims under the Rehabilitation Act are barred. Hodges, 976 F.Supp.2d at 490. Although plaintiffs are also required to exhaust administrative remedies for hostile work environment claims, “an instance of harassment need not have occurred within the forty- five days preceding the employee's request for counseling so long as it is ‘part of hostile work environment that allegedly occurred at least partly within the statutory period.'” Id. at 492 (quoting Costanzo v. U.S. Postal Serv., No. 00-cv-5044 (NRB), 2003 WL 1701998, at *6 (S.D.N.Y. Mar. 31, 2003)).
Although Lee does not allege the dates when he first sought EEO counseling, the time period covered by his complaint can be calculated by working backwards from the date of filing. Lee's first EEO complaint was filed on October 3, 2015. Sec. Am. Compl. at 38. If the EEO counseling was extended pursuant to § 1604.105(e), then the latest date Lee could have sought counseling was June 20, 2016, and so claims related to conduct that occurred on or after May 6, 2015, would be considered exhausted. See Lucenti v. Potter, 432 F.Supp.2d. 347, 357 (S.D.N.Y. 2006) (determining whether allegations in complaint were timely by identifying date that plaintiff first contacted EEO counselor and calculating first day of the 45-day time period accordingly). As such, to the extent that Plaintiff raises claims related to Defendant's conduct before May 6, 2015, those claims are barred.
To the extent that Lee's statement of facts in his complaint raises issues relevant to the period at issue in his first suit, Lee I, 2017 WL 486944, those claims are also barred by res judicata. Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Cho v. Blackberry Limited, 991 F.3d 155, 168-69 (2d Cir. 2021) (holding that plaintiffs' claims arose out of the same transaction or occurrence as a prior suit and so were precluded by res judicata).
Lee has, however, exhausted his claims of harassment and retaliation from 2015, which may also be construed as a hostile work environment charge and denial of reasonable accommodations. Lee cites to multiple incidents where he was instructed to work as a receptionist in May and June 2015, which he alleges constitutes harassment, and notes that he requested and was denied the accommodations of disabled parking status and toner for his printer in June and July of the same year. Sec. Am. Compl. at 21-22. The first right-to-sue letter indicates that the SSA considered, and rejected, his claim that he was subjected to harassment, retaliation, and denial of reasonable accommodations beginning May 20, 2015. Id. at 29.
Lee's claim that he was unlawfully suspended is also exhausted. In his Second Amended Complaint, Lee alleges that he was suspended on February 1, 2016, and again on August 15, 2016. Lee filed an EEO complaint on April 27, 2016, specifically raising the February suspension. Id. at 43-44. Although Lee did not provide specific dates when he sought EEO counseling, the February suspension occurred 86 days before the filing of the complaint, and so it likely occurred within the 45-day statutory period. Furthermore, the August suspension was explicitly mentioned in his third, undated, EEO complaint, likely filed in September 2016. Id. at 50-51. Both incidents were investigated by the SSA during the EEO process. Id. at 34.
In addition, Lee's claims that he was unlawfully denied leave and charged as absent without leave, and that the SSA failed to provide a timely response to his request for a hardship transfer, are exhausted. Lee identifies multiple occasions between January and April 2016 when he requested, and was denied, leave. Id. at 22-23. Similarly, in his April 27, 2016 complaint, Lee reported that he requested leave on February 5, February 8, April 18, and on other occasions between February 8 and March 14. Id. at 44-45. He also notes that he was charged as absent without leave on two occasions in April and that his request for a transfer was not granted until April 25. Id. Again, although the date when Lee sought EEO counseling is unclear, it can reasonably be presumed that at least one of these incidents occurred within the 45-day statutory period, and any subsequent denials of requests for leave would be reasonably related. See Almendral v. New York State Off, of Mental Health, 743 F.2d 963, 967 (2d Cir. 1984) (“[D]efendants' alleged subsequent acts are essentially the same as the earlier allegedly wrongful conduct contained in the EEOC complaint.”). Furthermore, all three claims were explicitly considered by the SSA. S.A.C. at 34.
Despite Defendant's argument to the contrary, Lee's claims of repeated harassment regarding suspensions, telework, leave, and workloads between February and August 2016 are also exhausted. Defendant urges that to the extent that these claims related to events that occurred in San Diego after Lee's transfer in May 2016, “they were allegedly perpetrated by different individuals, at a different location from the conduct challenged by the EEOC” and hence were not “reasonably related” to the other claims. ECF No. 35, Memorandum of Law (“Def. Br.”) at 11. However, it is clear from Lee's EEO complaints that he alleged a pattern of harassment, not isolated, discrete acts of discrimination. S.A.C. at 43-45, 47-48, 50. In contrast, in the cases cited by Defendant, the EEO complaints filed by the plaintiffs did not allege a pattern of discrimination, and hence did not put the SSA on notice to investigate subsequent events. See, e.g., Samimy v. Cornell Univ., 961 F.Supp. 489, 493 (W.D.N.Y. 1997) (reasoning that because of the “narrow scope” of the EEO charge, which was “limited to a discrete incident, the 1992 performance evaluation” the additional claims raised in the federal complaint were not reasonably related). Moreover, Lee's allegations could reasonably be construed as a hostile work environment claim: in his May 2016 complaint, he states that his supervisors made his job “impossible” by “restricting contacting offices per training and job function, change job to receptionist which is physically demanding and had no experience nor knowledge of what to do up there, illegally suspended, denied union rep, harassed, given [absent without leave].” S.A.C. at 48. To the extent that some of the incidents alleged by Lee did not fall within the 45-day statutory period, the hostile work environment exception applies. Hodges, 976 F.Supp.2d at 492; cf Bazile v. City of New York, 215 F.Supp.2d 354, 361 (S.D.N.Y. 2002) (rejecting argument that hostile work environment claim was reasonably related to charges in EEOC complaint where plaintiff “failed to suggest the existence of a hostile work environment anywhere in his EEOC charge”).
Finally, to the extent that Lee argues that Defendant discriminated against him in failing to promote him and eventually terminating his employment, neither of these claims are explicitly mentioned in his EEO complaints, nor does he provide facts or dates that indicate that “the conduct complained of would fall within the ‘scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993), superseded by statute on other grounds as stated in Legnani v. Alitalia Linne Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n.10 (2d Cir. 1978)). As such, I conclude that these claims are unexhausted.
In conclusion, Lee's claims of the denial of reasonable accommodations and harassment (construed as a hostile work environment claim) and retaliation are exhausted, as are his claims that he was unlawfully suspended, denied leave, and charged as absent without leave. His claim that the SSA failed to timely consider his hardship transfer request is similarly exhausted. But any claims arising out of conduct from before May 2015 and his allegation that the SSA failed to promote him and ultimately terminated him for discriminatory reasons are unexhausted, and I recommend that the Court dismiss them on this ground.
B. Denial of Reasonable Accommodations
Under the Rehabilitation Act, it is unlawful for “a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” 29 C.F.R. § 1630.9. In order to establish a prima facie case for failure to accommodate under the Rehabilitation Act, a plaintiff must show “(1) that he is an individual who has a disability within the meaning of the [Rehabilitation Act], (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.” Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997). “While a plaintiff need not allege specific facts establishing a prima facie case of discrimination in order to withstand a motion to dismiss, the elements of a prima facie case often provide an outline of what is necessary to render a plaintiff's claims for relief plausible.” See Carter v. Verizon, 13-cv-7579 (KPF), 2015 WL 247344, at *5 (S.D.N.Y. Jan. 20, 2015). “[T]he determination of whether a particular modification is ‘reasonable' involves a fact specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the disability in question and the cost to the organization that would implement it.” Staron v. McDonald's Corp., 51 F.3d 353, 356 (2d Cir. 1995).
In his Second Amended Complaint, Lee alleges that on June 24, 2015, he requested via email disabled parking status and toner for a printer he kept at his desk as an accommodation, referencing a doctor's note stating that he has a “chronic condition in his left hip” and that “[e]xtended standing and walking and repetitive movements like sitting to standing/standing to sitting may be difficult for him, due to pain.” Sec. Am. Compl. at 21; Ex. 43 at 2; Ex. 44 at 1 (“What about the disabled parking? What about the printer toner?”). This request was made in response to an email from the SSA's Hearing Office Director, explaining that Lee's request for a “printer, scanner, [and] electronic case assignment” made on May 12, 2015, had been denied. Ex. 44 at 4. The Director notes that when he met with Lee, he explained that he had a printer at his desk, which Lee acknowledged was working well, and that management was investigating providing a printer at the receptionist desk as well. Id. at 4-5. He added that a scanner was not necessary to Lee's current job duties, and if he required one while working at reception, he should notify management. Id. at 5. As to Lee's request for electronic case load, the supervisor explained that working with paper cases was an essential function of Lee's job, and prior adjudication had determined that he could perform this function as long as he was limited to carrying documents that weigh less than five pounds. Id. In the alternative, he could contact management for assistance. Id. Although Lee attaches an August 2015 letter from the SSA's Office of Human Resources stating that his request for a standalone printer to be installed at the reception desk was approved, he alleges that it never arrived. Sec. Am. Compl. at 25; Ex. 45 at 1.
On February 1, 2016, he requested telework as a “reasonable accommodation.” Sec. Am. Compl. at 26; Ex. 52 at 1. Lee claims that his request for reasonable accommodations were denied on April 27, 2016, pointing to an email from his supervisor that explained that his request to work only with electronic cases was previously denied as processing paper applications was an essential job function but noting that he could reach out to management if he needed help lifting a particular case. Sec. Am. Compl. at 26, Ex. 61. He alleges that when he transferred to San Diego, he was provided with a broken printer instead of a new one. Sec. Am. Compl. at 26. In support of this claim, he references email correspondence with technical support staff at Dell informing him that a new printer had been ordered and was expected to arrive within five to ten business days and explaining that his old printer had been shipped to the SSA on December 3, 2014, one and a half years prior. Id. at 26; Ex. 64 at 1-2.
Even though the Second Amended Complaint adequately alleges that Lee is a person with a disability and the SSA was aware of that disability, Lee cannot satisfy the third and fourth elements necessary to establish a prima facie claim of failure to accommodate. Although Lee relies on his requests for toner for his printer, disability parking rights, and telework as proof that the SSA had failed to accommodate him, he does not allege any facts that indicate that these accommodations would allow him to perform the essential functions of his job. See Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995) (“Under our approach, the plaintiff bears the burden of production and persuasion on the issue of whether she is otherwise qualified for the job in question.... It follows that the plaintiff bears the burden of proving . . . that an accommodation exists that permits her to perform the job's essential functions.”).
In Lee's first lawsuit, he also alleged that toner was not provided, but admitted that “the lack of toner was due to funding, and was an issue office-wide.” Lee I, 2017 WL 486944, at *11 n.10. As such, Judge Failla declined to “make the logical leap to conclude that these episodes amounted to the SSA's failure to make a reasonable accommodation.” Id.
Moreover, Lee's claim that the SSA failed to provide him with reasonable accommodations is plainly contradicted by the exhibits attached to his complaint. “The Court is not required to accept as true the allegations in the Complaint, in the face of documents that state otherwise.” Sosa v. New York City Dep't of Educ., 368 F.Supp.3d 489, 524 (E.D.N.Y. 2019); see also Matusovsky v. Merrill Lynch, 186 F.Supp.2d 397, 399-400 (S.D.N.Y. 2002) (“[A] court may consider documents attached to the complaints as exhibits, or incorporated by reference, as well as any documents that are integral to, or explicitly referenced in, the pleading. If a plaintiff's allegations are contradicted by such a document, those allegations are insufficient to defeat a motion to dismiss.”). The SSA provided Lee with a printer both at his desk and the receptionist desk, and when he moved to San Diego the SSA ordered a new printer. Id. at 524 (reasoning that plaintiff failed to state a claim of failure to accommodate where the documents attached to the complaint indicated that despite delays, her requests were eventually granted). Although the SSA did not grant his request for an electronic caseload on the grounds that processing paper applications was an essential function of his position, it provided that he could seek help lifting files that weighed more than five pounds from management. Goonewardena v. N. Shore Long Island Jewish Health Sys., No. 11-cv-2456 (MKB), 2014 WL 1271197, at *10 (E.D.N.Y. Mar. 26, 2014) (holding that plaintiff failed to state a plausible failure accommodate claim under the Rehabilitation Act where defendants attempted to accommodate him); see also McElwee v. Cty. of Orange, 700 F.3d 635, 642 (2d Cir. 2012) (“Although a public entity must make ‘reasonable accommodations,' it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice.”) Overall, the documents submitted with Lee's complaint indicate that the SSA made “good faith and reasonable efforts” to accommodate him. Quadir v. New York State Dep't of Lab., 39 F.Supp.3d 528, 540 (S.D.N.Y. 2014).
I conclude that Lee has failed to state a claim for failure to accommodate and recommend that it be dismissed.
C. Disparate Treatment
To state a disparate treatment claim under the Rehabilitation Act, an individual must show: “(1) plaintiff's employer is subject to the [Rehabilitation Act]; (2) plaintiff was disabled within the meaning of the [Rehabilitation Act]; (3) plaintiff was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) plaintiff suffered [an] adverse employment action because of her disability.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004). “A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks omitted). This action “must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. For example, “[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Id. (internal quotation marks omitted). “Actions that are ‘trivial harms'-i.e., ‘those petty slights or minor annoyances that often take place at work and that all employees experience'-are not materially adverse.” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (emphasis omitted) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Lee's disparate treatment claim is difficult to differentiate from his retaliation claim. In the Second Amended Complaint, he provides the following explanation:
Plaintiff reprisal complaint is due to Social Security Administration Brooklyn management instructions contrary to national desk guide and training, disparate treatment, 4x more work than co-worker in 2015, changing job to receptionist in 2015, 3 day suspension, 14 day suspension falsifying time records, mailing notices to wrong address, deleting emails and evidence, assigning physical duties denying reasonable accommodations, denying union representation, providing false information such as temporary transfer and leave.Sec. Am. Compl. at 10. A few pages later, he adds that “harassing officials were not removed and time records were not corrected and reasonable accommodations requests and medical were ignored which lead [sic] to the suspensions in 2016.” Id. at 14. He claims that he was assigned “over 10 supervisors” during 2015 “against job description and training and national procedure.” Id. “This is disparate treatment and retaliation, ” he concludes. Id. Lastly, in his objections to the Defendant's motion to dismiss, Lee writes:
Social Security Administration retaliated and discriminated based on disability and appealing reasonable accommodation denials and non responses and delays. The assignment of work and change of position to receptionist backup and suspensions are related to the retaliation for being disabled.ECF No. 39, Ex. 1 at 3. Reading these contentions to raise the strongest arguments they suggest, Lee alleges that he suffered the following adverse employment actions because of his disability: the assignment of four times more work; his assignment to work as the receptionist; one fourteen-day and one three-day suspension; the denial of reasonable accommodations; and the assignment of additional supervisors.
These allegations are similar to those raised in his previous complaint, and, with the exception of the suspensions, do not constitute adverse employment actions. The receipt of additional work within an individual's job description is not adverse so long as it is not paired with a loss in pay or benefits. See, e.g., Rodriguez v. Coca Cola Refreshments USA, Inc., No. 12-cv-234 (BMC), 2013 WL 5230037, at *3 (E.D.N.Y. Sept. 16, 2013) (“[I]t is well established that assignments that are part of an employee's normal responsibilities are not ‘adverse employment actions' where . . . the rate of pay and benefits remains the same.”). Similarly, Lee does not allege that his assignment to cover receptionist duties was a demotion that resulted in the loss of pay or benefits. Indeed, the exhibits to the complaint indicate that Lee was only assigned for brief periods to cover for the receptionist during her breaks and do not support his claim that he was demoted. ECF No. 29, Ex. 42 at 1, Ex. 47 at 1; see also Fletcher v. ABM Building Value, 775 Fed.Appx. 8, 13 (2d Cir. 2019) (reasoning that plaintiff's transfer to work as receptionist was not an adverse employment action because it was not accompanied by a cut in pay, a change in title, a diminution in authority, or a measurable loss of status). Furthermore, “a failure to provide a reasonable accommodation in and of itself does not equate to an adverse employment action.” Berger v. New York City Police Dep't, 304 F.Supp.3d 360, 368 (S.D.N.Y. 2018). Although Lee claims that he had 10 supervisors, the email he cites does not support his claim that he was supervised by multiple parties, see ECF No. 29, Ex. 49. Juggling relationships with superiors is precisely one of the “petty slights or minor annoyances that often take place at work and that all employees experience.” Tepperwien, 663 F.3d at 568.
Although suspension without pay may be considered an adverse employment action, Lee has not established the necessary nexus with his disability. Edrisse v. Marriott Intern., Inc., 757 F.Supp.2d 381, 389 n.52 (S.D.N.Y. 2010). Lee includes a few emails along with his complaint claiming that he was absent for medical reasons, but the exhibits he submits along with his objections further undermine his claims. See Lee II, 2020 WL 5836513, at *7 (“Although courts typically ignore factual material raised for the first time in objections to the R&R, this Court may consider Plaintiff's own assertions that contradict a plausibly alleged claim.”). The Hearing Officer's decision on the February 1, 2016 suspension indicates that Lee was suspended because he made disrespectful comments to his supervisors, refused to cover for the receptionist, made inappropriate comments to a mail carrier, a building maintenance worker, and co-workers, sent an email about covering receptionist duties in defiance of explicit instructions to only discuss the topic with management, and allowed an unauthorized party to access a hearing itinerary with names and social security numbers. ECF No. 38, Ex 2. at 1-3. The Hearing Officer's decision from the August 15, 2016 suspension shows that Lee was charged with failing to comply with leave procedures 39 times in February-March 2016, and that he was absent without leave forty times in the same period. Id. at 9-15. The decision explicitly addresses Lee's claim that he required medical leave, explaining that he did timely request medical leave and the medical documentation he submitted - a brief note from his doctor stating that he required a leave of absence - was not sufficient to demonstrate that he was incapacitated and incapable of working. Id. at 19. Because the decisions fully articulate non-discriminatory explanations for Lee's dismissal, I conclude that Lee does not “specifically allege . . . circumstances giving rise of a plausible inference of discriminatory intent.” Brodt v. City of N.Y., 4 F.Supp.3d 562, 568 (S.D.N.Y. 2014).
I conclude that Lee has failed to state a claim for disparate treatment and recommend that the Court dismiss the cause of action.
D. Retaliation
The Rehabilitation Act prohibits an employer from “discriminat[ing] against any individual because such individual . . . made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the Act]” 42 U.S.C. § 12203(a); see also 29 U.S.C. § 794(d). Claims for retaliation under the Rehabilitation Act are “analyzed under the same burden-shifting framework established for Title VII cases.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). “To establish a prima facie case of retaliation, an employee must show that (1) [he] was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). “An employer's action is ‘materially adverse' within the context of a retaliation claim where it is ‘harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination.'” Atencio v. U.S. Postal Serv., 14-cv-7929 (GHW), 2015 WL 7308664, at *8 (S.D.N.Y. Nov. 19, 2015) (quoting White, 548 U.S. at 57). “The standard for an adverse employment action in a retaliation claim, however, is not as demanding as it is in a discrimination claim.” Quadir, 39 F.Supp.3d at 542. While a discrimination claim must demonstrate adverse actions affecting the terms and conditions of employment, a retaliation claim may be based on “employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and employers.” White, 548 U.S. at 68. However, “normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” Id.
In his Second Amended Complaint, Lee identifies a range of alleged adverse employment actions and asserts that the SSA retaliated against him for filing multiple EEO complaints and lawsuits, and for testifying on behalf of co-workers in disciplinary actions. Sec. Am. Compl at 12-13, 15. The alleged adverse employment actions include: the assignment of additional work, Id. at 10, the assignment to work as receptionist, Id., one three-day and one fourteen-day suspension without pay, Id., the denial of reasonable accommodations, Id. at 10, 15, the assignment of additional supervisors, id. at 10, 14, the denial of Lee's requests for leave, Id. at 11-13, and delayed processing of his transfer request. Id. at 13. Lee claims that union representative Cindy Berger told him he would be demoted to receptionist if he filed another lawsuit. Id. at 14, 16.
Plaintiff's participation in the SSA's internal EEO process is participation in a legally protected activity. See Lee I, 2017 WL 486944, at *12 (citing Treglia, 313 F.3d at 719). As with Lee's prior Complaint, the Defendant does not dispute this point, but argues that Lee has failed to allege conduct that is actionably adverse and has not established a causal nexus between the protected activity and the adverse action.
Contrary to Defendant's argument, for the purpose of a retaliation claim, Lee is not required to allege adverse employment actions that resulted in a materially adverse change in the terms and conditions of his employment. Courts have held that reassignment to a different position, suspension without pay, denial of reasonable accommodation, denial of requests for time off, and delay in processing a request for benefits or reassignment constitute adverse employment actions for the purpose of a retaliation claim. See White, 548 U.S. at 70 (holding that reassignment from forklift duty to standard track laborer tasks and 37-day suspension without pay sufficient to support retaliation claim); Jones v. City of New York, No. 17-cv-4894 (AT), 2020 WL 91532, at *8 (S.D.N.Y. Jan. 8, 2020) (holding that denial of a reasonable accommodation is an adverse employment action for purposes of retaliation claim); Wharton v. Cty. of Nassau, No. 10-cv-0265 (JS)(AKT), 2013 WL 4851713, at *12 (E.D.N.Y. Sept. 10, 2013) (“Defendants' denial of Plaintiff's requests for reassignment, self-swaps, and time off are adverse actions as they would dissuade a reasonable employee from making or supporting a charge of discrimination.”); Dechberry v. New York City Fire Dep't, 124 F.Supp.3d 131, 148 (E.D.N.Y. 2015) (holding that a delay in receipt of benefits was insufficient to establish an adverse employment action for the purpose of a discrimination claim, but “could dissuade a reasonable worker from making or supporting a charge of discrimination”). Notwithstanding these examples, however, a “bare, conclusory allegation that [plaintiff] is assigned extra work is insufficient to show that [he] suffered an adverse action.” Kelly v. New York State Off, of Mental Health, 200 F.Supp.3d 378, 406 (E.D.N.Y. 2016). Similarly, “[t]he receipt of undesirable assignments, without more, amounts to nothing more than a ‘mere inconvenience.'” Lee v. Starwood Hotels & Resorts Worldwide, Inc., 2016 WL 3542454, at *14 (S.D.N.Y. June 22, 2016) (quoting Henry v. NYC Health & Hosp. Corp., 18 F.Supp.3d 396, 406 (S.D.N.Y. 2014)). As a result, for the purposes of his retaliation claim, Lee has adequately alleged adverse employment actions to the extent that he alleges he was threatened with demotion, suspended without pay, denied reasonable accommodations, denied requests for leave without pay, and did not promptly receive his requested hardship transfer.
Lee has not, however, adequately alleged that “a retaliatory motive played a part” in his assignment to cover for the receptionist, suspension without pay, the denial of reasonable accommodations, the denial of his requests for leave without pay, and the delay in the receipt of his hardship transfer. Jones, 2020 WL 91532, at *8. “A causal connection may be established ‘either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Id. (quoting Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). But the fact that an adverse employment action occurs after the plaintiff has engaged in protected activity is insufficient, standing alone, to establish causation. Mandavia v. Columbia Univ., 912 F.Supp.2d 119, 133 (S.D.N.Y. 2012).
Lee generally asserts that Defendant's conduct was retaliatory, but he does not articulate any connection, either temporal or otherwise, between the alleged retaliation and his protected activities. “[V]ague and non-specific” allegations asserting a nexus between the protected activities and adverse actions cannot survive a motion to dismiss. Carter, 2015 WL 247344, at *15. Moreover, Lee filed multiple complaints and lawsuits over the course of his seven-year employment with the SSA, including three EEO complaints during the period at issue. As a result, “there was a rarely a time that [the SSA] could have taken action against [Lee] that would not have been recently preceded by some complaint that [he] believes is subject to . . . protection.” Manon v. Pons, 131 F.Supp.3d 219, 235 (S.D.N.Y. 2015). Therefore, the Court cannot infer retaliation based solely on the proximity between his protected activity and adverse actions.
Although Lee argues that the union representative's comment that he would be demoted to receptionist if he filed another EEO complaint is evidence of retaliatory animus, the Court considered and rejected this argument in reviewing the prior motion to dismiss, concluding that “the statements of a union representative are not imputed to an employer for purposes of discrimination claims.” Lee II, 2020 WL 5836513, at *7.
I conclude that Lee has failed to state a claim for retaliation under the Rehabilitation Act and recommend that it be dismissed.
E. Hostile Work Environment
The Court of Appeals “has not yet decided whether a hostile work environment claim may be made under the ADA” and by extension, the Rehabilitation Act. See Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 Fed.Appx. 739, 745 n.2 (2d Cir. 2014). For the purposes of this Report and Recommendation, I assume a hostile work environment claim is actionable under the Rehabilitation Act. See Kelly, 200 F.Supp.3d at 399 (assuming hostile work environment claim is actionable under the Rehabilitation Act and applying standards used in Title VII context); see also Monachino v. Bair, 769 F.Supp.2d 431, 442 (S.D.N.Y. 2011).
In order to state a claim for hostile work environment, a plaintiff “must first show that his workplace ‘was permeated with discriminatory intimidation, ridicule, and insult,' that was ‘sufficiently severe or pervasive to alter the conditions' of the victim's employment and create an abusive working environment.” Martinez v. City of N.Y., 338 Fed.Appx. 71, 73 (2d Cir. 2009) (quoting Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003)). This requires a plaintiff to “plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive-that is, . . . creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [membership in a protected class].” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (alteration in original) (internal quotation marks omitted).
Lee points to the following conduct by Defendant as evidence of harassment: directing him to cover for the receptionist during her breaks, Sec. Am. Compl. at 22, 26, telling him “not to send or develop cause for late filing . . . [a]gainst training and policy, ” id. at 23, requiring him to mail paper cases, id., sending correspondence to his personal email, id., denying him reasonable accommodations, id. at 24, and assigning him additional work and supervisors, id. at 24, 26. It can reasonably be inferred from the Complaint (as well as Lee's EEO complaints) that Lee also views the denial of leave and his suspensions as further evidence of a hostile work environment. Id. at 13. Although Lee alleges that this environment caused him to suffer from depression, Id. 11, 13, 14, the conduct he describes does not rise to the level of objectively severe and persistent harassment. Nothing indicates that a reasonable person would have found the actions of Lee's supervisors “physically threatening or humiliating, ” or that it “unreasonably [interfered] with [his] work performance.” Hodges, 976 F.Supp.2d 489, 497-98 (S.D.N.Y. 2013) (dismissing plaintiff's hostile work environment claim based on incidents that were, ultimately, personnel decisions “untethered to the claimed ground of discrimination). Indeed, with the exception of the denial of leave and the suspensions without pay, Lee's allegations are not substantively different from those raised in his prior complaint. The Court concluded there that Lee had “not plausibly alleged a hostile work environment” and dismissed the claim. Lee II, 2020 WL 5836513, at *6.
I therefore conclude that Lee has failed to state a hostile work environment claim under the Rehabilitation Act and recommend that the claim be dismissed.
III. Title VII Claims
Lee indicates in the Court's form complaint that he is pleading a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. SAC at 3. Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Lee did not indicate any basis for such discrimination (that is, he did not check any box in the form complaint). Because Lee does not allege any discrimination claims based on the covered traits, his claim under Title VII should be dismissed.
IV. ADA Claims
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112. A “covered entity” means “an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. § 12111(2). The term “employer, ” however, does not include “the United States.” 42 U.S.C. § 12111(5)(B)(i). Accordingly, courts have concluded that, while the ADA prohibits discrimination and retaliation by certain private sector employers as well as state and local government employers, it does not provide a cause of action against the federal government for employment discrimination. Hodges v. Att'y General of the U.S., 976 F.Supp.2d 480, 490 (S.D.N.Y. 2013) (holding that the Rehabilitation Act, not the ADA, provides “the exclusive route by which federal employees may raise claims of employment discrimination on the basis of disability”); see also Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) (“As a federal employee, [Plaintiff] has no remedy for employment discrimination under the ADA.”). The Court previously determined that amendment of Lee's ADA claim would be “futile” and denied leave to amend. Lee II, 2020 WL 5836513, at *9. I conclude that Plaintiff's ADA claim should be dismissed accordingly.
IV. FMLA Claims
Although the FMLA grants a private right of action to an employee in the private sector who alleges violation of his FMLA rights, see 29 U.S.C. § 2617(a)(2) (1994), the FMLA does not afford a private right of action to an employee of the federal government, see 5 U.S.C. §§ 6381-6387; see also Beauchat v. Mineta, No. 03-cv-03196 (DRH)(ETB), 2006 WL 2711608, at *9 (E.D.N.Y. Sept. 21, 2006) (“The courts have recognized the distinction between private sector employees and federal government employees with regard to enforcement rights and have held that no independent right of action is available to federal government employees to enforce their FMLA rights.”). Notably, the Court previously did not grant Lee leave to amend his FMLA claim. Lee II, 2020 WL 5836513, at *9. Because Plaintiff is a federal employee, he does not have a private right of action under the FMLA and his claim should be dismissed.
V. No FEAR Act Claim
Lee also brings a cause of action under the No FEAR Act. The law “includes provisions requiring federal agencies to provide additional reimbursement for discrimination cases, to notify and train employees about their rights, and to report on employee complaints about the agency.” Mallard v. Brennan, No. 14-cv-00342 (JAW), 2015 WL 2092545, at *9 (D. Maine May 5, 2015). Although the issue has been sparsely litigated, the courts that have considered the issue have concluded that it “does not create any private cause of action or substantive rights.” Id.; see also Alexidor v. U.S. Off, of Pers. Mgmt., No. 13-cv-4027 (DLI)(SMG), 2013 WL 4647528, at *2 (E.D.N.Y. Aug. 29, 2013). I therefore conclude that Lee does not have a private right of action under the No FEAR Act and recommend that his claim be dismissed.
VI. Weingarten Violation
“‘Weingarten rights refers to the right to union representation during an ‘investigatory interview' under the National Labor Relations Act.” Figueroa v. Nielsen, 423 F.Supp.3d 21, 26 n.5 (S.D.N.Y. 2019). The National Labor Relations Board “has ‘exclusive jurisdiction' . . . when there is an arguable violation of the NLRA.” Rest. Law. Ctr. v. City of New York, 360 F.Supp.3d 192 223 (S.D.N.Y. 2019). As such, “the proper forum to hear [Lee's] complaint is the National Labor Relations Board, not this Court.” Bowman v. New York State Hous. & Cmty. Renewal, No. 18-cv-11596 (ER), 2020 WL 1233701, at *9 (S.D.N.Y. Mar. 13, 2020). I recommend that the Court dismiss this claim.
VII. Obstruction of Justice
Lee alleges that the SSA is “guilty of obstruction of justice by deleting emails and splitting complaints and not taking complaint and destroying medical evidence.” Compl. at 11. There is not, however, a private right of action for violations of the criminal statutes regarding obstruction of justice. Pierre v. Lieberman, No. 16-cv-5473 (GBD)(HBP), 2017 WL 9565660, at *9 n.6 (S.D.N.Y. June 14, 2017); see also Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009) (upholding dismissal of claims based on violation of federal criminal statutes because “federal criminal statutes do not provide private causes of action”); Langella v. United States, No. 1-cv-11583 (AKH), 2002 WL 1218525 at *4 (S.D.N.Y. June 5, 2002) (“These [obstruction of justice] provisions . . . do not create a private right of action for money damages, but may be enforced only by the Department of Justice.”). As such, Lee's obstruction of justice claim should be dismissed.
VIII. Leave to Amend
Courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). “Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend.” Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (internal quotation marks omitted). “One appropriate basis for denying leave to amend is that the proposed amendment is futile . . . An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Id. (internal citations omitted). Leave to amend may also be denied “when a party has been given ample prior opportunity to allege a claim.” De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 72 (2d Cir. 1996).
I recommend that the Court deny with prejudice Plaintiff's claim under Title VII because he has not alleged discrimination on any covered ground. The Court should deny with prejudice Plaintiff's claims under the ADA and FMLA because, as a federal employee, he does not have a right of action under either law. Similarly, I recommend that the Court deny with prejudice Plaintiff's No FEAR Act claim and his allegations of a Weingarten violation and obstruction of justice, because there is no private right of action to enforce the No FEAR Act or federal criminal statutes, and this Court does not have jurisdiction over violations of the NLRA.
Furthermore, I recommend that the Court deny Plaintiff's Rehabilitation Act claims with prejudice. Plaintiff was previously granted the opportunity to amend his complaint, and despite his extensive allegations and voluminous submissions in support of his claims, he has failed to “give any indication that a valid claim might be stated.” Cuoco, 222 F.3d at 112. “Leave to amend . . . may properly be denied for . . . ‘repeated failure to cure deficiencies by amendments previously allowed . . . [or] futility of amendment.'” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). I conclude that granting Lee an additional opportunity to amend his complaint would be futile and recommend that the Court deny him leave to amend.
CONCLUSION
Even construing Plaintiff's allegations under the liberal standard afforded to pro se litigants, I find that the Complaint does not plausibly allege claims under Title VII, the ADA, the FMLA, the Rehabilitation Act, or the No FEAR Act. Furthermore, this Court does not have jurisdiction over the Plaintiff's allegation of a Weingarten violation, nor is there a private right of action that would allow him to bring an obstruction of justice claim against Defendant. Accordingly, I recommend the Court grant Defendant's motion to dismiss in its entirety.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).