Montimerano v. Wegmans Food Markets, Inc.
Filing
32
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 22 Defendant's Motion for Summary Judgment and dismissing Plaintiff's complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/21/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SUSAN MONTIMERANO,
DECISION AND ORDER
No. 11-CV-6097(MAT)
Plaintiff,
-vsWEGMANS FOOD MARKETS, INC.,
Defendant.
________________________________
INTRODUCTION
Plaintiff Susan Montimerano (“Montimerano” or “Plaintiff”),
brings this action pursuant to the Age Discrimination in Employment
Act of 1967, (“ADEA”)(codified at 29 U.S.C. § 621 et. seq.), the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12201 et seq.
(“ADA”), and the New York State Human Rights Law (“HRL”) (N.Y.
Exec. Law § 209, et seq.), alleging that her former employer,
Wegmans
Food
Markets,
Inc.
(“Wegmans”
or
“Defendant”),
discriminated against her on the basis of her age and an alleged
disability.
Defendant moves for summary judgment, pursuant to Rule 56 of
the Federal Rules of Civil Procedure (“Rule 56”), seeking dismissal
of Plaintiff’s complaint in its entirety.
Dkt. No. 22.
Although
Plaintiff requested and was granted an extension of time to file
her response (Dkt. No. 30), she failed to do so and Defendant’s
summary judgment motion was deemed submitted without oral argument
on February 3, 2014 (Dkt. No. 31).
For the reasons set forth
below, Defendant’s unopposed motion is granted and Plaintiff’s
complaint is dismissed in its entirety with prejudice.
BACKGROUND
The following facts have not been controverted by Plaintiff,
and accordingly, are deemed admitted for purposes of this motion.
Local Rule of Civil Procedure 56.1 requires that a party moving for
summary judgment include with its motion a “separate, short, and
concise statement of the material facts to which the moving party
contends there is no genuine issue to be tried.”
56.1(a).
See Local Rule
“When a party has moved for summary judgment [] and has,
in accordance with local court rules, served a concise statement of
the material facts as to which it contends there exist no genuine
issues to be tried, those facts will be deemed admitted unless
properly controverted by the nonmoving party.”
Corp., 964 F.2d 149, 154 (2d Cir. 1992).
Glazer v. Formica
Although the Plaintiff
was given notice and the opportunity to file a response to the
defendant’s motion for summary judgment, she failed to do so and
therefore, the Defendant’s Statement of Facts is deemed admitted.
See Cassidy v. Nicolo, 2005 U.S. Dist. LEXIS 34160, 2005 WL
3334523, *2 (W.D.N.Y. 2005) (facts asserted by the defendants
deemed admitted where the plaintiff failed to file a response).
Plaintiff was employed by Wegmans from 1983 to 2009, where,
for the majority of that time, she worked as Team Leader of the
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Deli Department at the Chili Paul store. As Team Leader, Plaintiff
was responsible for supervising deli staff, sending orders for deli
items, maintaining inventories, writing schedules, and providing
customer service.
Plaintiff reported to Deli Manager Joe Ingoglia
(“Ingoglia”), who reported to Perishable Manager Tomas Jacobs
(“Jacobs”), who, in turn, reported to store manager Robert Godula
(“Godula”).
In July 2008, Plaintiff was granted medical leave by Defendant
and
underwent
shoulder
surgery.
In
October
2008,
Plaintiff
returned to work with a note from her doctor stating that she had
no work restrictions.
Throughout her employment, including prior to her medical
leave in 2008, Plaintiff had difficulty getting along with other
Wegmans employees and manager Ingoglia, and was counseled by
management on at least two occasions for her reported behavior. In
May 2009, based on other employees’ complaints about Plaintiff,
Jacobs
and
Human
Resources
Representative
Lori
Martinez
(“Martinez”) commenced an investigation into Plaintiff’s conduct,
in which they interviewed Plaintiff and several employees in the
Deli
Department.
Upon
completion
of
their
investigation,
Plaintiff’s employment was terminated effective May 19, 2009.
Thereafter, Plaintiff filed a charge of age and disability
discrimination with the Equal Employment Opportunity Commission
(“EEOC”), and this civil action subsequently followed.
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DISCUSSION
I.
Defendant’s Motion for Summary Judgment
Rule 56© of the Federal Rules of Civil Procedure provides that
summary
judgment
“should
be
rendered
if
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant
is
entitled
to
judgment
as
a
matter
of
law.”
When
considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.
Scott v. Harris, 550 U.S. 372, 380 (2007).
If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
appropriate.
Industrial
Co.
Scott, 550 U.S. at 380 (citing Matsushita Elec.
v.
Zenith
Radio
Corp.,
475
U.S.
574,
586-587
(1986)).
II.
Plaintiff Cannot Establish a Claim of Discrimination Based on
Age or Disability
Plaintiff alleges that she was discriminated against on the
basis of her age and/or alleged disability. Claims of employment
discrimination
are
analyzed
under
the
well-recognized
burden
shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and later refined in Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary’s Honor Center
-4-
v. Hicks, 509 U.S. 502 (1993). The plaintiff bears the burden
proving a prima facie case of discrimination. If the plaintiff
succeeds in stating a prima facie case, the burden of production
shifts to the defendant to state a legitimate, non-discriminatory
reason for the employment action. Should the employer meet that
burden, the burden of production then shifts back to the plaintiff
to show that the reasons proffered by the employer were not the
true reasons for the adverse employment action, but were a pretext
for discrimination, and that discrimination was the real reason.
See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
252-53 (1981); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506
(1993). Because claims of disability discrimination under New York
State Law are analyzed under the same standards applicable to the
ADA, for the reasons stated below, Plaintiff’s state-law claims of
discrimination are also dismissed along with his federal claims.
Parinello v. Bausch & Lomb, 2013 U.S. Dist. LEXIS 55379, 2013 WL
1680152 at * 13 (W.D.N.Y., April 17, 2013)(“legal standards for
discrimination and retaliation claims under the Human Rights Law
are analytically identical to claims brought under the ADA.”).
A.
Age Discrimination
Plaintiff alleges that she was discriminated against on the
basis
of
her
age.
To
establish
a
prima
facie
case
of
age
discrimination under the ADEA, a plaintiff must demonstrate that;
(1) she is a member of a protected group; (2) she was qualified for
-5-
the
position
she
held;
and
(3)
she
was
discharged
under
circumstances giving rise to an inference of age discrimination.
McDonnell-Douglas
Corp.
v.
Green,
411
U.S.
792,
802
(1973);
Promisel v. First American Artificial Flowers, 943 F.2d 251, 259
(2d Cir. 1991), cert. denied, 502 U.S. 1060 (1992).
Although the
Second Circuit Court of Appeals has stated that “the burden that
must be met by an employment discrimination plaintiff to survive a
summary judgment motion at the prima facie stage is de minimis,”
Tomka
v.
omitted),
Seiler
it
has
Corp.,
also
66
F.3d
discrimination from thin air.”
1308
that
noted
at
(internal
"[a]
jury
citations
cannot
infer
Norton v. Sams Club, 145 F.3d 114
(2nd Cir.), cert. denied, 525 U.S. 1001 (1998).
In the instant case, there is no dispute that Montimerano is
a member of a protected class as she is over age 40.
has not
and
cannot established
that
her
job
However, she
performance
was
satisfactory, and this is fatal to her claim.
To establish the second essential element of her prima facie
case,
Montimerano
must
“show
that
[her]
performance
sufficient quality to merit continued employment.”
was
of
Javier v.
Deringer-Ney, Inc., 2009 U.S. Dist. LEXIS 90849, *15 (D. Conn.
Sept. 30, 2009) (quoting Powell v. Syracuse Univ., 580 F.2d 1150,
1155 (2d Cir. 1978), aff’d, 419 Fed. Appx. 100, 2011 U.S. App.
LEXIS 7826 (2d Cir. 2011).
In the instant case, the record
reflects that, as Deli Team Leader, Montimerano was responsible
-6-
for,
among
developed
a
other
things,
discordant
supervising
relationship
deli
with
staff.
her
Plaintiff
co-workers,
and
various co-workers complained about her to management. The discord
eventually required intervention by both management and HR, and
resulted in an investigation and interview of Plaintiff’s coworkers who reported, among other things, that Plaintiff was “mean
and
vindictive,”
that
she
“abuse[d]
her
power,”
and
that
“[e]mployees [were] scared to say something” because she controlled
their schedules. Martinez Dec. Ex. J. Additionally, one co-worker
reported an incident when she was pregnant and Plaintiff moved her
purse to the back of a closet so that she could not reach it
because of her pregnant status.
Another co-worker reported an
incident in which she observed Plaintiff cause another employee to
cry because she “yell[ed]” at that employee in front of customers.
As a result of Plaintiff’s conduct, which violated Defendant’s
workplace rules and policies against harassment and discrimination,
Defendant terminated her employment.
The record before this Court, even reviewed in the light most
favorable to Montimerano, indicates that a reasonable trier of fact
could
not
conclude
that
Montimerano’s
performance
sufficient quality to merit continued employment.
was
of
a
See Flint v.
Tucker Printers, Inc., 2011 U.S. Dist LEXIS 1645 (W.D.N.Y. Jan. 7,
2011) (finding that Plaintiff failed to establish prima facie case
of discrimination where he was terminated for, among other things,
-7-
using profanity directed at subordinates in the workplace); Javier,
2009 U.S. Dist. LEXIS at *16-17 (finding that negative assessment
of Plaintiff’s management style, as complained-of by subordinates,
indicated that a reasonable trier of fact could not conclude
plaintiff’s
performance
was
of
sufficient
quality
to
merit
continued employment).
Even if Plaintiff had shown that she was qualified for the
position, there is no evidence in the record that Plaintiff’s
termination
occurred
under
circumstances
inference of age discrimination.
giving
rise
to
an
In her Complaint (Dkt. No. 1 at
¶ 44), Plaintiff asserts in a conclusory manner that “the practices
of defendant [] harm older employees of the defendant and favor
younger employees.” Indeed, a plaintiff may establish an inference
of age discrimination by demonstrating that she was treated less
favorably than significantly younger employees.
Lincoln Hall, 263 F.3d 49, 53 (2d Cir.2001).
does not elaborate on this
McGuinness v.
Plaintiff, however,
allegation in her Complaint or point to
any facts that support this contention beyond her statements in the
Complaint. Moreover, she admitted at her deposition that she could
not identify any factual basis for this assertion made in her
Complaint.
Montimerano Dep. at 151-152.
As such, she cannot
establish an inference of discrimination with respect to her
termination.
-8-
Plaintiff has also failed to show how two comments allegedly
made by her supervisor Ingoglia demonstrate a discriminatory animus
on the part of Wegmans resulting her termination in May 2009.
Montimerano claims that, during a performance review with Ingolgia,
after she indicated to him that she wished to continue to work at
the Deli, he responded, “oh, you mean until you retire?”
No. 1 at ¶ 21.
Dkt.
She also claims that, on a separate occasion when
she was trying to log into a computer, Ingoglia remarked “you mean
you can’t remember the password?”
Id.
Assuming Ingoglia made
these remarks, Plaintiff has not pointed to any relevant persuasive
evidence or otherwise explained how these facially-neutral and
context-specific statements were discriminatory based on her age.
Notably, with respect to the second comment, Plaintiff admits that
she could not, in fact, remember the password and that Ingoglia
assisted her in finding it so that she could access the computer
system.
Montimerano Dep. at 139.
Moreover, the record reflects
that Ingoglia was not involved in and did not even participate in
the decision to terminate Montimerano’s employment.
Accordingly, Plaintiff has failed to establish a prima facie
case
of
age
discrimination,
and
the
Court
therefore
grants
Defendant’s summary judgment motion with respect to this claim.
B.
Disability Discrimination
To establish a prima facie case of disability discrimination,
Montimerano must show that (1) Wegmans is subject to the ADA;
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(2) she was disabled within the meaning of the statute or that
Wegmans perceived her as disabled; (3) she was otherwise qualified
to perform the essential functions of her job with or without
reasonable
accommodation;
and
(4)
she
suffered
an
adverse
employment action because of her disability. See Brady v. Wal-Mart
Stores, Inc., 531 F.3d 127, 134 (2008) (citations omitted).
Here,
Plaintiff
cannot
establish
a
prima
facie
case
of
discrimination because she has not and cannot establish that was
disabled within the meaning of the ADA, or that Wegmans perceived
her as disabled.
Even if she could, she cannot establish an
inference of discrimination on the basis of her alleged disability.
To establish the existence of a disability, a plaintiff must
demonstrate that he or she suffers from a physical or mental
impairment that “substantially limits one or more major life
activities
.
.
.
.”
42
U.S.C.
§
12102(2)(A).
“Major
life
activities” are defined in the regulations promulgated by the EEOC
as “functions such as caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.”
45 C.F.R. § 84.3(j)(2)(ii).
In the instant case, Plaintiff has failed to establish that
she is a qualified person with a disability, or that she was
regarded by Wegmans to be a qualified person with a disability.
This is so because Plaintiff admits that her shoulder surgery did
not negatively impact any of her life activities after her return
-10-
to work.
Montimerano Dep. at 143.
Further, she returned to work
with a note from her doctor indicating she had “no restrictions[.]”
See Lloyd v. The New York Botanical Garden, 2006 U.S. Dist. LEXIS
49066, *16-17 (S.D.N.Y. July 6, 2006) (“Given that after surgery on
his right shoulder, Plaintiff returned to work with no restrictions
. . ., plaintiff was not ‘disabled’ within the meaning of the
ADA.”). Additionally, Plaintiff points to no medical evidence that
shows she was substantially limited in her performance of any major
life activity at the time of her termination.
See Jackson v. Nor
Lach Manor Healthcare Facility, 297 F.Supp.2d 633, 636 (W.D.N.Y.
2004) (granting summary judgment where Plaintiff failed to submit
medical evidence showing that any impairment significantly affected
her ability to work or otherwise engage in a substantial life
activity), aff’d, 134 Fed. Appx. 477 (2d Cir. 2005).
Similarly,
Plaintiff does not point to any evidence that Wegmans perceived her
as
having
an
impairment.
In
fact,
she
admitted
during
her
deposition that she could not identify any factual basis for her
allegation that Wegmans regarded or perceived her as having an
impairment.
Montimerano Dep. at 143-144.
Accordingly, she has
failed to establish the first prong of the prima facie inquiry.
Even assuming she could establish the first prong of the
prima facie inquiry, Plaintiff has not submitted evidence causing
an
inference
disability.
of
discrimination
on
the
basis
of
her
alleged
The record is completely devoid of evidence that
-11-
Wegmans terminated or harassed her on the basis of her alleged
disability, and there is no evidence to suggest that Wegmans even
considered Plaintiff’s 2008 surgery as a basis for deciding to
terminate her employment in May 2009. In her Complaint, in support
of this claim, she asserted that when she returned from her
shoulder surgery in 2008, she requested a three day vacation and
her supervisor remarked, “I wish you wouldn’t do so because I’m
trying to get you back on Bob’s (the store manager) good side,”
which,
according
to
her,
implied
that
Defendant
viewed
unfavorably because she had taken time off for her surgery.
No. 1 at ¶ 19.
her
Dkt.
Plaintiff’s allegation, however, is based on
nothing more than speculation, and is also belied by her deposition
testimony in which she admitted that the vacation request was made
prior to her shoulder surgery.
Additionally, she admitted during
her deposition that she could not think of any other “caustic or
negative remarks alluding to her taking time off for surgery,” and
that no one ever said “anything to [her] that suggested they were
treating [her] differently because of [her] surgery.”
Montimerano
Dep. at 169.
Accordingly, Plaintiff has failed to state a prima facie case
of
disability
discrimination.
The
Court
therefore
grants
Defendant’s summary judgment motion with respect thereto, and
dismisses Plaintiff’s disability discrimination claims.
-12-
III. Retaliation
To establish a prima facie case of retaliation under the ADEA
or the ADA, Montimerano must show: (1) she engaged in protected
activity known to Wegmans; (2) an adverse employment action; and
(3) a causal connection between the protected activity and the
alleged adverse employment action.
Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 110 (2d Cir. 2010).
“The term protected
activity refers to action taken to protest or oppose statutorily
prohibited discrimination.”
Cruz v. Coach Stores, Inc., 202 F.3d
560, 566 (2d Cir. 2000).
Plaintiff’s claim that Wegmans retaliated against her for
alleged
“good
faith
complaints
of
age
discrimination
in
the
workplace” (Dkt. No. 1 at ¶ 36) fails because she has not presented
evidence
to
show
that
she
engaged
in
a
protected
activity.
Plaintiff testified at her deposition that during her employment,
she did not complain to anyone that she believed she was subject to
age discrimination.
Montimerano Dep. at 121.
A review of the
record reflects that Plaintiff testified during her deposition that
she told management or HR about various instances when she believed
Ingoglia showed her a lack of respect or support.
29,
40.
Because,
however,
Plaintiff
did
not
Id. At 24, 28,
complain
of
discrimination based on age to management or HR, thus making those
complaints
related
to
Ingoglia
activity”.
See e.g., Bennett v. Watson Wyatt & Co., 156 F.Supp.2d
-13-
did
not
constitute
“protected
270, 272 (S.D.N.Y. 2001) (finding Plaintiff failed to establish
first prong of prima facie inquiry where Plaintiff complained of
comments and threats toward but failed to present evidence that
complaints were based on her belief she was being discriminated
against on account of race); Neishlos v. City of New York, 2003
U.S. Dist. LEXIS 19554, *26 (S.D.N.Y. Oct. 31, 2003) (Plaintiff’s
complaint which did not mention religious or ethnic discrimination
did not qualify as good faith protected activity).
Accordingly, Plaintiff has failed to state a prima facie case
of retaliation, and the Defendant’s summary judgment motion with
respect to this claim is granted.
CONCLUSION
For the reasons set forth herein, Defendant’s Motion for
Summary Judgment is granted. Plaintiff’s Complaint is dismissed in
its entirety with prejudice.
IT IS SO ORDERED.
s/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
March 21, 2014
Rochester, New York
-14-
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