McIntosh v. Bank of America
Filing
201
DECISION AND ORDER granting Defendant's [170) Motion for Summary Judgment. The complaint is dismissed, and the Clerk is directed to enter judgment for Defendant and close the case. Signed by Hon. John T. Curtin on 8/24/2011. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JITKA McINTOSH,
Plaintiff,
-vs-
06-CV-708
BANK OF AMERICA,
Defendant.
APPEARANCES:
JITKA McINTOSH, Plaintiff Pro Se.
BOND, SCHOENECK & KING, PLLC (JAMES J. ROONEY, ESQ.,
OF COUNSEL), Buffalo, New York;
EDWARDS ANGELL PALMER & DODGE LLP (GINA D.
WODARSKI, ESQ., OF COUNSEL), Boston, Massachusetts,
Attorneys for Defendant.
INTRODUCTION
This case was recently transferred to the docket of the undersigned by the Hon.
William M. Skretny. It is currently before the court on the defendant’s motion for summary
judgment dismissing the complaint (Item 170).
BACKGROUND
Plaintiff commenced this action with the filing of a complaint on October 24, 2006
(Item 1). She asserted claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. (“Title VII”) and the Americans with Disabilities Act of 1990, 42 U.S.C.
§ 12112, et seq. (“ADA”). In her pro se form complaint, plaintiff stated that she filed a
charge with the Equal Employment Opportunity Commission (“EEOC”) on March 23, 2006
and received a Right to Sue letter on July 25, 2006 (Item 1).1 She alleged that defendant
failed to promote her and failed to provide her with reasonable accommodations so that
she could perform the essential functions of her position. She also alleged that she was
harassed on the basis of her sex and retaliated against because she complained about
discrimination directed toward herself and others. Id.
After successfully moving for an extension of time in which to answer (Items 4, 8),
defendant filed its answer on March 8, 2007 (Item 10) and an amended answer on
March 20, 2007 (Item 15).
On March 9, 2007, plaintiff filed a second charge of
discrimination with the EEOC, in which she alleged national origin discrimination and
retaliation.
On November 5, 2007, she amended the charge to include claims of
discrimination based on sex, age, and disability. On July 7, 2008, plaintiff filed a second
complaint (Case Number 08-CV-503), alleging discrimination based on disability, national
origin, sex, and age, and retaliation. On February 5, 2009, defendant moved to have the
two cases consolidated (Item 102). In an order filed February 13, 2009, the court denied
the motion because there was a pending motion to dismiss in case 08-CV-503 (Item 106).
Plaintiff’s claims of sex and age discrimination and retaliation in case 08-CV-503
were dismissed for failure to state a claim and/or to timely exhaust administrative remedies.
On September 4, 2009, following the resolution of the motion to dismiss in case 08-CV503, the two cases were consolidated.
1
The docum ents in support of the m otion for sum m ary judgm ent indicate that plaintiff wrote to
the EEOC on March 24, 2006, and her form al com plaint was signed April 28, 2006 (Item 72, App. 194-96).
2
On November 18, 2009, defendant filed a motion for judgment on the pleadings
dismissing plaintiff’s claims for gender discrimination and retaliation pursuant to Title VII
and the New York State Human Rights Law, N.Y. Exec. Law § 196 (“NYSHRL”) (Item 124).
In a Report and Recommendation filed June 7, 2010, Magistrate Judge H. Kenneth
Schroeder recommended that the motion be granted (Item 156). On July 21, 2010, Chief
Judge Skretny denied the plaintiff’s objections and accepted the Report and
Recommendation in its entirety (Item 162). Accordingly, plaintiff’s remaining claims are
limited to discrimination based on national origin and disability, and retaliation.
On January 28, 2011 defendant filed the instant motion (Item 170). Plaintiff filed her
response, consisting of an affidavit and statement of facts, on April 4, 2011 (Items 183,
184). She was denied leave to file a memorandum of law in excess of the 25-page limit
(Item 187), and filed the memorandum on May 13, 2011 (Item 188). Defendant filed a
reply memorandum on July 15, 2011 (Item 191) and concurrently filed a motion to strike
plaintiff’s factual averments (Item 192). On July 21, 2011, plaintiff filed a motion requesting
a status conference (Item 197), which was denied (Item 198). In consideration of plaintiff’s
pro se status, the court denied the defendant’s motion to strike, stating that it will consider
the plaintiff’s submissions with due regard to defendant’s arguments regarding admissibility
(Item 199). The court has determined that oral argument on the motion for summary
judgment is unnecessary. For the reasons that follow, the defendant’s motion to dismiss
is granted, and the complaint is dismissed.
3
FACTS2
Plaintiff was born in the Czech Republic in 1962 and came to the United States in
1990 (App. 7). She started working for defendant in approximately October 2002 (App.
25). She was a customer service representative in the Accelerator Department, selling
various Bank of America products by telephone (App. 26-28).
In an affidavit, Diane Herman stated that she was the Accelerator Department
Telephone Team Manager from August 2005 until May 2008 (App. 340). Once, after
plaintiff expressed frustration with life in the United States, Herman asked her if she ever
considered returning to the Czech Republic (App. 341, ¶ 1). On August 4, 2004, Herman
verbally coached plaintiff regarding her handling of customer calls and advised her that the
next customer complaint would result in a written disciplinary action (App. 352). On
August 19, 2005, plaintiff received a written counseling memorandum for her refusal to
transfer a customer call to a specific employee (App. 354).
In October 2005, plaintiff received her 2005 performance evaluation. She was not
happy with it and expressed a desire to transfer from the Accelerator Department. Herman
reminded plaintiff that she could not apply for other Bank of America positions within six
months of receiving a written warning (App. 342, ¶ 10). Despite this, plaintiff applied for
a position and began approaching other supervisors in the area asking to be transferred
to their teams. Id., ¶¶ 11-12.
2
This factual statem ent is taken prim arily from the exhibits subm itted in support of the m otion for
sum m ary judgm ent and appended to defendant’s Statem ent of Facts (Item 172). These include the
plaintiff’s deposition testim ony, personnel docum ents, internal m em oranda, and affidavits of Bank of
Am erica em ployees. References to the exhibits will be preceded by “App.,” consistent with their
pagination in the electronic docket. The court has also reviewed the plaintiff’s subm issions in opposition
to the m otion, docketed as Item 184.
4
In March 2006, Herman was contacted by a recruiter with regard to a position for
which plaintiff had applied. Herman told the recruiter that she could not recommend
plaintiff for the position (App. 343, ¶ 15). Plaintiff had complained to other associates that
her food had been poisoned by a co-worker. Id. Additionally, plaintiff accused Herman of
having her followed. Herman advised plaintiff to contact defendant’s Employee Assistance
Program (“EAP”) if she needed to speak to someone. Id. On the advice of defendant’s
human resources department, on March 24, 2006, Herman issued plaintiff a Final Written
Warning for her inappropriate behavior (App. 369-70). Herman was unaware at the time
that plaintiff had contacted the EEOC (App. 343, ¶ 17).
According to plaintiff’s 2006 first and second quarter manager reviews, plaintiff had
not met all of her sales goals, but her overall rating was “Meets Expectations” (App. 379).
On May 1, 2006, plaintiff disrupted a team meeting by playing with her cell phone (App.
344, ¶ 19). In June 2006, Herman received e-mails from a corporate trainer documenting
plaintiff’s failure to follow instructions during an exam. Id., ¶ 20. On June 6, 2006, plaintiff
missed a staff meeting, despite being specifically instructed to attend the meeting by
Patrick Marks, Herman’s manager. She then approached other associates and asked
them to sign a document she had drafted stating that she had attempted to attend the
meeting but arrived late. Id., ¶ 21. Herman also received a complaint from another
associate that plaintiff had been tracking reward points3 earned by her co-workers. Id.,
¶ 22. On June 19, 2006, plaintiff was issued another Final Written Warning (App. 387).
She was advised that additional misconduct or inappropriate behavior could result in
3
“Reward points” are an incentive system by which defendant rewards its em ployees. The
em ployee accum ulates points, which can be used to purchase various prizes.
5
termination (App. 345, ¶ 23). At the time, Herman was unaware that plaintiff had filed a
complaint with the EEOC. Id.
On September 1, 2006, Herman received a complaint about plaintiff from another
Bank of America employee who had requested information from plaintiff on behalf of a
bank client and plaintiff had refused the request (App. 345, ¶ 24). On November 1, 2006,
Herman met with plaintiff regarding her annual review. Plaintiff’s overall rating was “Does
Not Meet Expectations” for her failure to meet important sales goals and her poor
interaction with customers and co-workers (App. 397). They planned to meet again in
March 2007 “to review what progress there has been with your goals.” Id. Herman told
plaintiff that she needed to meet her year-end goals despite her scheduled vacation (App.
345, ¶ 26). Additionally, plaintiff was advised that she could not take more than two weeks
of vacation at a time due to the fact that defendant was short-staffed and plaintiff had not
made her sales goals (App. 400).
On December 2, 2006, a customer called to complain about plaintiff’s handling of
her request (App. 346, ¶ 27). Although she could have terminated plaintiff’s employment,
Herman issued a third Final Written Warning on December 5, 2006 (App. 404).
After December 5, 2006, plaintiff worked one day. She used a combination of
vacation time, personal leave, and sick time between December 6, 2006 and January 2,
2007 (App. 346, ¶ 30; App. 406, 407). On January 2, 2007, plaintiff was advised that her
employment was terminated (App. 347, ¶ 31).
Herman stated that plaintiff had a personality conflict with another co-worker,
Anthony Parisi, but plaintiff never complained to Herman that Parisi’s conduct was in any
way discriminatory (App. 347, ¶ 33). Additionally, Herman stated that she was unaware
6
that plaintiff suffered from any disability or medical condition, and plaintiff never requested
an accommodation (App. 349, ¶ 48).
In support of the motion, defendant submitted internal records of plaintiff’s attempts
to secure other Bank of America positions after October 2005. The records indicate that
plaintiff applied for two positions in October 2005, but was subject to a written disciplinary
warning and thus was not eligible (App. 481-83; App. 476). In an affidavit, Wanda
Ebrahim, a Bank of America recruiter, stated that she contacted Ms. Herman regarding
plaintiff’s application for a Personal Banking position in October 2005, but did not inquire
further upon learning that plaintiff had received a written warning less than six months prior
(App. 478, ¶ 12). Plaintiff applied for a group banking position in March 2006 and was
found to have not met the minimal qualifications (App. 484). She also applied for positions
as a Personal Banker, but Ms. Herman did not support her application. Ultimately, both
positions went unfilled (App. 484-85). Plaintiff applied for a position as a small business
specialist in March 2006, but was found not to be minimally qualified (App. 485).
In further support of the motion for summary judgment, defendant submitted
affidavits from Maggie Rejman, Zoe Dettman, and Alicia Mowry, plaintiff’s co-workers. Ms.
Rejman and Ms. Mowry stated that they witnessed plaintiff behaving in a confrontational
and argumentative manner with management and being rude to and arguing with
customers (App. 505, ¶ 4; App. 579, ¶ 4). In March 2006, plaintiff falsely accused Ms.
Rejman of poisoning her. In November 2006, plaintiff told Ms. Rejman that she might
leave her employment with Bank of America and return to the Czech Republic or move to
Jamaica (App. 506, ¶¶ 6-9). Ms. Dettman stated that plaintiff talked about moving to
7
Jamaica in 2005 and 2006. Ms. Dettman visited plaintiff’s condominium, which was for
sale, to determine if she was interested in buying it (App. 507, ¶¶ 4, 5).
Defendant also submitted an affidavit from Jacqueline Natalino, a corporate trainer
for Bank of America. Ms. Natalino stated that she proctored an examination on June 2,
2006 for members of the Accelerator Department. Plaintiff was unable to complete the
exam in the two hours allotted, and refused to finish when Ms. Natalino requested that she
do so (App. 509, ¶¶ 4 - 6).
In an affidavit, Michael Gordon, a corporate recruiter for Bank of America, stated
that plaintiff applied for a position as a Personal Banker in the Feathersound Banking
Center on February 21, 2006. Plaintiff’s manager did not support her bid for the position
(App. 519, ¶¶ 2, 5). Thereafter, plaintiff applied for another position on March 14, 2006.
Again, plaintiff’s manager would not support her. Id., ¶ 6. Mr. Gordon stated that a
successful candidate for the Personal Banker position must be consistently meeting or
exceeding her sales goals at her current position in order to meet the minimum
qualifications for the position (App. 520, ¶ 14). A candidate must also have excellent
customer service skills (App. 521, ¶ 17). The requisitions for both positions were cancelled
without being filled (App. 520, ¶ 10).
Defendant also submitted affidavits from several of plaintiff’s co-workers who
applied for and were awarded positions with Bank of America, and an affidavit of a Human
Resources manager regarding several of plaintiff’s co-workers who were awarded positions
within Bank of America. All the employees were qualified for the positions they sought and
had no record of disciplinary or performance issues (App. 534-46). None of the co-workers
was aware of plaintiff’s having a disability or requesting an accommodation. Id.
8
Plaintiff testified that she “loved” her job and was happy, even at the time she was
terminated (App. 30). She believed that Diane Herman prevented her from relocating
because she “was not one of Diane Herman’s favorites.” (App. 40). Plaintiff testified that
she found gray crystals on her desk and thought that someone at work had poisoned her
(App. 42 - 47). She later testified that she believed Ms. Herman poisoned her (App. 71).
Plaintiff states that on October 26, 2005, a co-worker put a Czech flag on her
computer monitor (App. 51). She was offended because the co-worker gave no one else
a flag and she “took it as a message to leave this country” (App. 52). She also took it as
a message from management, because she saw the co-worker, Dan McParlane, leaving
for lunch at the same time as the management team. Plaintiff spoke with McParlane
directly as she did not want him to be punished (App. 56). She did not remove the flag,
however, because it was a “gift” (App. 52).
Plaintiff admitted missing a staff meeting on June 6, 2006, although she stated that
she attempted to find the meeting room (App. 74 -75). She then prepared a document that
stated she was going towards the meeting as it was ending and asked people leaving the
meeting to sign it (App. 75).
Plaintiff testified that she has shooting pain down both arms as a result of her
herniated discs. While she is able to drive, she cannot turn her head. (App. 58). She is
sometimes unable to comb her hair, and doing housework causes her pain (App. 59).
Sometimes typing is painful. Id. She is in “horrible” pain in the winter. She also suffers
from an swollen jawbone in the winter due to an abscess (App. 60, 131). The jaw pain first
occurred in 1994 as a result of complications from a root canal. Id. It occurred again in
March 2003, and again after she left Bank of America (App. 61). She did not have a
9
history of the problem in the summer. It occurred usually in the winter or spring, when her
body’s immunity is low due to a lack of vitamin D (App. 131). Plaintiff stated that she is
claiming that defendant discriminated against her because of this jaw problem (App. 63).
She testified that the abscess does not prevent her from doing any activity, but she must
be careful not to lose her balance (App. 134).
Plaintiff admitted that during her 2006 evaluation, she was rated as not meeting
expectations in three goal areas–Accelerator II, checking accounts, and mortgage rewards
applications - and three behavior areas (App. 89 -90). With regard to the incident on
December 2, 2006, plaintiff stated that she attempted to find a missing document for a
customer but was unable to. She then told the customer to call back on Monday (App. 93).
Plaintiff stated that she had three weeks of vacation in 2006 and planned on taking two
weeks of vacation in December to visit Jamaica (App. 96). On December 5, 2006,
plaintiff’s managers told her that she needed to reach her quarterly sales goal by the end
of December (App. 119).
Plaintiff told Ms. Herman that she wanted to transfer to a new job because she
wanted customer contact. She did not mention the need for an accommodation for a
disability (App. 118). She testified that she decided she wanted to relocate following an
incident with a co-worker who plaintiff stated made faces at her (App. 124 -25). She also
testified that “winter makes [her] health condition unbearable or worse” (App. 131). Plaintiff
testified that she asked for unpaid leave every winter so that she could extend her
vacation, and Ms. Herman refused her request (App. 137). She never presented Ms.
Herman any medical documents stating that she needed unpaid leave for medical reasons
10
(App. 138). None of her doctors ever told her that she should move because of her
physical condition (App. 147).
Plaintiff complained that other co-workers were allowed to transfer to other positions
and cities, but she had no idea of their qualifications, their disciplinary records, or the
qualifications of the other applicants (App. 151 - 57).
The court has reviewed the documents submitted by plaintiff in opposition to the
motion for summary judgment (Item 184). Medical records indicate that plaintiff was
diagnosed with myofascial strain and inflammation in August 2001 and herniated discs at
C4-5 and C5-6 in February 2004 (Item 184, pp. 20-21). In an e-mail dated March 6, 2006,
plaintiff told a recruiter that “this cold climate in NY is my primary reason for moving to FL.”
Id., p. 54.
DISCUSSION
1. Summary Judgment Standard
Rule 56 provides that summary judgment is warranted where “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.” Fed R. Civ. P. 56(a). A factual dispute is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and
facts are “material” if they “might affect the outcome of the suit under the governing law
. . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The movant bears the burden of showing the absence of a genuine issue of material
fact, and the proffered evidence must be viewed in the light most favorable to the
nonmovant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If the movant
11
meets this burden, the burden then shifts to the nonmovant to come forward with evidence
“sufficient to satisfy every element of the claim.” Holcomb v. Iona College, 521 F.3d 130,
137 (2d Cir. 2008). However, the nonmovant “may not rely on mere conclusory allegations
nor speculation, but instead must offer some hard evidence showing that its version of the
events is not wholly fanciful.” D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.),
cert. denied, 524 U.S. 911 (1998).
This Circuit has emphasized that courts should be especially cautious in granting
summary judgment in employment discrimination cases, where the employer's intent is
usually a central factual issue. See Chertkova v. Conn. Gen. Life Ins., 92 F.3d 81, 87 (2d
Cir. 1996). “However, even in the discrimination context, a plaintiff must provide more than
conclusory allegations of discrimination to defeat a motion for summary judgment.”
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
2. Discrimination Based on National Origin
Plaintiff contends that she was discriminated against based on her national origin.
Construing her pro se complaint liberally, plaintiff claims that she was subjected to
unwarranted discipline, was not promoted or transferred, and was eventually terminated
because she is from the Czech Republic and speaks with an accent. Title VII provides that
it is an “unlawful employment practice for an employer . . . to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).
12
Courts analyze employment discrimination claims brought under Title VII by using
the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–03 (1973). First, the plaintiff must establish a prima facie case of discrimination
by demonstrating that: (1) she is a member of a protected class; (2) she was qualified for
the position she held; (3) she suffered an adverse employment action; and (4) the adverse
action took place under circumstances giving rise to the inference of discrimination. Ruiz
v. County of Rockland, 609 F.3d 486, 492 (2d Cir. 2010). While this burden has often
been characterized as “minimal” or “de minimis,” see, e.g., Zimmermann v. Assocs. First
Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (citing cases), courts have not hesitated
to grant summary judgment in favor of the employer where the plaintiff offered no evidence
to suggest that the adverse employment action occurred under circumstances giving rise
to an inference of discrimination. See, e.g., Kazukiewicz v. Kaleida Health, 2010 WL
2998671, at *4 (W.D.N.Y. July 26, 2010) (citing Rodriguez v. Pierre New York, 299 F.
Supp. 2d 214, 218 (S.D.N.Y. 2004), aff'd sub nom. Rodriguez v. Human Resources
Director, 144 Fed. Appx. 197 (2d Cir. 2005)).
If the plaintiff succeeds in satisfying this initial burden, then “a presumption of
discrimination arises, and the burden shifts to the defendant, who must proffer some
legitimate nondiscriminatory reason for the adverse action.” Spiegel v. Schulmann, 604
F.3d 72, 80 (2d Cir. 2010).
The burden that shifts to the defendant . . . is to rebut the presumption
of discrimination by producing evidence that the plaintiff was rejected, or
someone else was preferred, for a legitimate, nondiscriminatory reason. The
defendant need not persuade the court that it was actually motivated by the
proffered reasons. It is sufficient if the defendant's evidence raises a genuine
issue of fact as to whether it discriminated against the plaintiff.
13
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (internal citation
omitted).
If the defendant produces evidence of a legitimate, nondiscriminatory reason for the
adverse employment action, “the presumption of discrimination created by the prima facie
case drops out of the analysis, and the defendant ‘will be entitled to summary judgment . . .
unless the plaintiff can point to evidence that reasonably supports a finding of prohibited
discrimination.’“ Mario v. P & C Food Markets, Inc., 313 F.3d 758, 767 (2d Cir. 2002)
(quoting James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000)). The burden
therefore shifts back to the plaintiff to give her the “opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253; see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Although the
analytical framework is articulated and applied in terms of “shifting” burdens, “the ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.” Leibowitz v. Cornell Univ., 584 F.3d 487,
499 (2d Cir. 2009) (quoting Burdine, 450 U.S. at 253).
Here, plaintiff is a member of a protected group, and she suffered adverse
employment actions in that she received disciplinary warnings, was not transferred or
promoted as she wished, and was eventually terminated. The court will assume, for
purposes of the motion, that plaintiff was qualified for the position she held as a customer
sales representative. Plaintiff has not shown, however, that she was qualified for any of
the positions she sought internally with Bank of America. Plaintiff was not eligible to bid
14
on job postings within six months of her written disciplinary warnings. She was found not
to be minimally qualified for several positions, and she was not recommended by her
manager for the Personal Banker positions that required consistency in meeting sales
goals and strong customer service skills. Additionally, plaintiff was not qualified for the
positions that required fluency in Spanish.
Even if the court were to assume that plaintiff had established a prima facie case
of national origin discrimination, defendant has offered legitimate, nondiscriminatory
reasons for the discipline she received, the failure to promote or transfer her to another
position, and her termination, including her failure to meet sales goals and her
inappropriate interactions with customers and co-workers. The written warnings all arose
from customer and/or co-worker complaints or involved insubordination toward her
managers. Plaintiff bases her claim of national origin discrimination primarily on the
alleged statement by Diane Herman that plaintiff “should go back to [her] old country.”
Even crediting plaintiff’s version of the events, that Ms. Herman made the statement in
anger, it is a stray comment of the type that, without more, is not probative of discriminatory
intent. The comment was made a year and a half before plaintiff’s termination, and plaintiff
admittedly never complained to management about it. “[S]tray remarks, even if made by
a decisionmaker, do not constitute sufficient evidence to make out a case of employment
discrimination.” Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998).
Additionally, plaintiff complains that she was given a Czech flag as a gift from a coworker, but that she was offended by it and took it as a sign of discrimination. Plaintiff
admitted that she spoke to the co-worker about the flag and accepted his apology. This
isolated incident does not suggest discrimination based on national origin.
15
Plaintiff has submitted no evidence, other than her speculation, to support her claim
that the reasons for the adverse employment actions were merely a pretext for
discrimination. She has failed to sustain her burden in opposition to the motion for
summary judgment, and the claim of discrimination on the basis of national origin must be
dismissed.
3. Discrimination Based on Disability
Plaintiff also alleges that she suffered discrimination on the basis of a disability.
Title I of the ADA prohibits employers from discriminating again any “qualified individual on
the basis of disability in regard to” any aspect of employment. 42 U.S.C. § 12112(a). A
plaintiff asserting a violation of the ADA must show that: (1) her employer is subject to the
ADA; (2) she was disabled within the meaning of the ADA; (3) she was otherwise qualified
to perform the essential functions of his job, with or without reasonable accommodation;
and (4) she suffered adverse employment action because of her disability. See Giordano
v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001). A disabled individual under the ADA
is one who: “(a) [has] a physical or mental impairment that substantially limits one or more
of the major life activities of such individual; (b) [has] a record of such an impairment; or
(c) [is] being regarded as having such an impairment.” 42 U.S.C. § 12102(1).
Once plaintiff has established the elements of a prima facie case, the burden shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Burdine, 450 U.S. at 254. The burden then returns to plaintiff to supply
evidence that the legitimate, nondiscriminatory reason offered by the defendant is
pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993).
16
Plaintiff cannot establish a prima facie case of disability discrimination because she
has not shown that she was disabled within the meaning of the ADA. Plaintiff complains
of neck pain due to herniated discs in her cervical spine and an abscess in her jaw,4 but
she has offered no evidence to suggest that either of these impairments substantially limits
a major life activity. Plaintiff testified that these conditions are isolated and intermittent.
She complained of an inability to turn her head and sporadic numbness in her hands, but
stated that she was able to work, drive, type, and clean her house, albeit with some
difficulty. Additionally, none of plaintiff’s physicians stated that she was limited from any
activity in any way or that she required an accommodation in the workplace. This evidence
is insufficient to raise a genuine issue of material fact regarding disability. Accordingly,
plaintiff has not established that she was disabled within the meaning of the ADA.
Even if the court were to find that plaintiff had established a prima facie case of
disability discrimination, the claim should nonetheless be dismissed. Defendant proffered
legitimate, nondiscriminatory reasons for the counseling memoranda and her termination,
based on the failure of plaintiff to meet her sales goals and her inappropriate and disruptive
behavior. Plaintiff has offered no evidence, other than her speculation, that these reasons
were merely a pretext for disability discrimination.
4
In her response to the m otion, plaintiff, for the first tim e, alleges that she suffers from a sleep
disorder and depression. She also attributed blisters to stress from the workplace, contradicting her
previous deposition testim ony. Plaintiff m ay not raise an issue of fact by contradicting or em bellishing
previous testim ony, and the court declines to consider such allegations. See Brown v. Henderson, 257
F.3d 246, 252 (2d Cir. 2001).
17
Additionally, plaintiff argues that defendant failed to accommodate her with unpaid
leave in the winter or a transfer to a warmer climate. As an initial matter, plaintiff has not
established that she was disabled, and so has failed to show that any accommodation was
required by the ADA. In any event, plaintiff has not shown that she was eligible or qualified
for any of the positions she sought, or that she was denied the positions or unpaid leave
based on a disability. Accordingly, plaintiff’s ADA claim must be dismissed.
4. Retaliation
Finally, plaintiff contends that she was retaliated against for her filing of charges with
the EEOC and for bringing this federal court action. Construing plaintiff’s pro se complaint
liberally, she alleges that she was issued written disciplinary warnings in June and
December 2006 and was terminated in January 2007 following the filing of her
discrimination claim with the EEOC in April 2006 and the commencement of this lawsuit
in October 2006.
Claims of retaliation are also analyzed under the burden-shifting rules of
McDonnell–Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). To set forth a prima facie claim for
retaliation, plaintiff must show: (1) that she participated in a protected activity; (2) that the
defendant knew of the protected activity; (3) that she suffered an adverse employment
action; and (4) that a causal connection exists between plaintiff's protected activity and the
adverse employment action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111,
113 (2d Cir. 2000). Once plaintiff makes out a prima facie case of retaliation, the burden
shifts back to the defendant employer to show that there was a legitimate, non-retaliatory
18
reason for its actions. If the employer meets its burden, “the presumption of retaliation
dissipates and the employee must show that retaliation was a substantial reason for the
adverse employment action.” Jute, 420 F.3d at 173 (citing Fields v. New York State Office
of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 120-21 (2d Cir.1997)).
It is undisputed that plaintiff participated in protected activity and that she suffered
adverse employment actions. Even assuming, for purposes of this motion, that defendant
knew of her protected activity and that she has shown a causal connection between the
protected activity and the alleged retaliation, defendant has proffered legitimate, nonretaliatory reasons for the adverse actions. The June 2006 warning was the result of
plaintiff’s failure to attend the staff meeting and her failure to follow the instructions of the
trainer during an exam. The December 2006 warning was the result of a customer
complaint and plaintiff’s failure to meet significant sales goals. Following the written
warning on December 5, 2006, plaintiff used all but four hours of her remaining sick time
and worked only one day until her vacation started on December 18, 2006, despite her
failure to meet her goals and with the knowledge that she was expected to meet the goals
by the end of the year regardless of her planned vacation.5 Plaintiff was aware that she
had received three “Final Written Warnings” and could be terminated for the next instance
of inappropriate behavior, customer complaints, or performance deficits.
5
Plaintiff contends that she was not told during her evaluation that she had to m eet her 2006
sales goals by the end of the year, but rather that she and Herm an would m eet again in March 2007 to
assess her progress. Regardless of this apparent m isunderstanding, it is undisputed that at the tim e the
Decem ber warning was issued, plaintiff was advised that she was to expected to m eet the sales goals by
the end of the year.
19
Plaintiff has offered no evidence other than temporal proximity to show that
defendant issued the written disciplinary memoranda or terminated plaintiff’s employment
in retaliation for her protected activity. While “temporal proximity of events may give rise
to an inference of retaliation for the purposes of establishing a prima facie case of
retaliation under Title VII, . . . without more, such temporal proximity is insufficient to satisfy
appellant's burden to bring forward some evidence of pretext.” El Sayed v. Hilton Hotels
Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam). Plaintiff has failed to sustain her
burden in opposition to the motion for summary judgment and, accordingly, plaintiff’s
retaliation claim must be dismissed.
CONCLUSION
Based on the foregoing, the defendant’s motion for summary judgment (Item 170)
is granted, and the complaint is dismissed. The Clerk is instructed to enter judgment for
defendant and close the case.
So ordered.
`
Dated: August 24
_______\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
, 2011
p:\opinions\06-708.aug92011
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