Opinion
01-CV-6409 CJS.
February 11, 2005
Donna Marianetti, Esq., Webster, NY, for Plaintiff.
Howard A. Stark, Esq., Monroe County Department of Law, Rochester, NY, for Defendant.
DECISION and ORDER
INTRODUCTION
This employment discrimination case, filed pursuant to the Americans with Disabilities Act of 1990 ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, and New York Executive Law § 296, is before the Court on defendant's motion (# 25) for summary judgment. For the reasons stated below, the motion is granted.
Pub.L. 101-336, Title II, § 202, July 26, 1990, 104 Stat. 337, codified at 42 U.S.C. § 12101 et seq.
Pub.L. 88-352, Title VII, § 703, July 2, 1964, 78 Stat. 255; Pub.L. 92-261, § 8(a), (b), Mar. 24, 1972, 86 Stat. 109; Pub.L. 102-166, Title I, §§ 105(a), 106, 107(a), 108, Nov. 21, 1991, 105 Stat. 1074-1076, codified at 42 U.S.C. § 2000e et seq.
BACKGROUND
Plaintiff's Complaint
Plaintiff commenced this action by filing a complaint on August 22, 2001, alleging that defendant discriminated against her "on account of Plaintiff's disabilities, Plaintiff's use of the FMLA and retaliated against [plaintiff] for opposing said discriminatory animus. . . ."
Family and Medical Leave Act, Pub.L. 103-3, § 2, Feb. 5, 1993, 107 Stat. 6., codified at 29 U.S.C.A. § 2601 et seq.
Plaintiff contends that she was employed by defendant from January 2, 1990 until her termination on February 9, 2001. She claims that, during a nine year period, when she was employed, she suffered from chronic depression and panic attacks, and, as a result, required ongoing treatment and medication. Additionally, she claims she suffered from carpal tunnel syndrome, for which she underwent surgery during her employment, and high blood pressure, which required medication. She further alleges that in November 1999, her physical and emotional health worsened. She states that this due to two factors: her diagnosis with a precancerous condition requiring medical treatment; and her mother-in-law's poor health. As a result of her deteriorating condition, she twice applied for a leave of absence under the Family Medical Leave Act ("FMLA"), first on April 4, 2000 and then October 30, 2000. Both requests were granted.
In her complaint, plaintiff states that she suffered from attacks "during the past nine (9) years." Since her complaint was filed in 2001, evidently her attacks started in 1992.
Plaintiff alleges that from November 1999 through her termination in February 2001, a period of approximately one year and three months, her immediate supervisor, Ellen McCauley ("McCauley"), "engaged in a continuous course of harassment of Plaintiff." Complaint ¶ 19. She maintains that this consisted of verbal harassment, and accusations of: sub-standard performance; falsification of business records; use of poor judgment in case handling; and failure to maintain appropriate boundaries between herself and her clients. Plaintiff claims that McCauley's conduct, along with McCauley's request for information about plaintiff's prognosis, and the defendant's investigatory interview on January 10, 2001, were all in violation of her rights under the ADA.
"[T]he questioning of an employee who, at the time of such questioning, appears to be a likely target for disciplinary action." County-Federation Contract § 21.4.
Plaintiff further contends that because she retained counsel to represent her, and because her attorney wrote a letter to defendant on January 21, 2001, complaining that plaintiff was being discriminated against, she was discharged on February 9, 2001. She claims that her discharge was retaliation for having engaged in a protected activity and was, therefore, a violation of her rights under Title VII. Additionally, plaintiff argues that the same conduct on defendant's part violated her rights under the New York Human Rights Law, Executive Law § 296, both as to discrimination because of her handicap, and as to retaliation.
Medical History
Timothy Quill, a medical doctor board certified in internal medicine and palliative care, diagnosed plaintiff in 1982 as suffering from panic disorder. On July 19, 1989, Dr. Quill also diagnosed plaintiff as suffering from high blood pressure. In regard to plaintiff's high blood pressure, he treated her with beta-blocker medications from December 11, 1989 through February 9, 2001, and such treatment controlled that condition. In 1990, Dr. Quill diagnosed plaintiff as suffering from depression. He treated plaintiff's depression with a combination of medication and supportive counseling.
During the period from November 1999 until November 2001, Dr. Quill thought that plaintiff was "doing better," At deposition, Dr. Quill testified that, as of April 3, 2000, plaintiff's depression and panic attacks did not prevent her from performing her essential job functions at the MCDSS. Quill Dep. at 53-54. In fact, from 1999 until early 2001, Dr. Quill did not consider plaintiff's panic attacks to be a physical or mental disability. Quill Dep. at 28, 38, 39. Beginning January 2001, Dr. Quill stated that as a result of a motor vehicle accident and stress at work, plaintiff's symptoms worsened. Quill Dep. at 26. Dr. Quill further testified that in November 2001, plaintiff was "feeling better in terms of her depression," but that "[t]here was another event in late 2002 where it started up again more seriously around the death of her sister." Quill Dep. at 27. At no time did plaintiff ever advise Dr. Quill that she needed her employer to provide her with special accommodations because of her depression, bipolar disorder, panic attacks, hypertension, or carpal tunnel. Quill Dep. at 56.
On January 22, 1996, Dr. John Thomas Maxwell, a board-certified neurosurgeon, performed successful carpal tunnel surgery on both of plaintiff's hands. Dr. Maxwell discharged her from his care on March 29, 1996. Dr. Maxwell did not place plaintiff on any restrictions in connection with handwriting, using a keyboard or a dictation machine, and he concluded that, as of March 29, 1996, plaintiff did not need any special accommodations to use a dictation machine, keyboard or a pen or pencil. Following her discharge from his care, plaintiff never reported to Dr. Maxwell that she was having any problems with her hands, wrists or arms while engaging in any activity.
In March 2001, Dr. Quill referred plaintiff to Dr. Ronald S. Biviano, ("Biviano"), a board certified psychiatrist. As a result of Dr. Quill's referral, Dr. Biviano's met with plaintiff on April 26, 2001. Dr. Bivano diagnosed plaintiff as suffering from bipolar disorder. However, while plaintiff was Dr. Biviano's patient, he never considered her to be disabled as a result of her bipolar or panic disorders. He also observed that plaintiff was never disabled, while she was Dr. Quill's patient, as a result of her bipolar disorder, panic attacks or depression. As a result of consultation with Dr. Biviano following the referral, Dr. Quill adjusted plaintiff's medications, and this adjustment caused her depression and panic attacks to improve.
Job Requirements
Plaintiff was a caseworker in the Monroe County Department of Social Services assigned to the Services Division Family Reunification, Team C, from July 2, 1994 until her termination on February 9, 2001. From July 1994 until February 24, 1996, her supervisor was Mary Ann Pulver ("Pulver"), whose unmarried name was Bartholomay. McCauley supervised plaintiff from February 24, 1996 until February 9, 2001. McCauley's supervisor was Linda Oinen. Richard Schauseil ("Schauseil") was the director of the department.
As a Team C caseworker, plaintiff's duty was to monitor children in foster care, and attempt to reunify their families. Her primary duty as a caseworker was the safety of the child and, in this regard, she was responsible for preparing petitions in connection with her child clients who were in foster care. Plaintiff prepared the petitions based upon personal knowledge and her progress notes. Progress notes record events that occur in a case and are required to be maintained pursuant to state law. See 18 NYCRR §§ 428.3 (Uniform Case Record Requirements) 428.5 (Progress Notes). The progress notes were also used by caseworkers for court testimony, and were reviewed by supervisors, defense counsel and law guardians.
Counseling
A labor agreement between the County of Monroe ("County") and the Monroe Federation of Social Workers IUECWA 8131 ("Federation"), was in effect from January 1, 2000, through December 31, 2003. Under that contract, informal counseling was described as a "verbal discussion of a deficiency" in an employee's work performance. County-Federation Contract § 21.3. Formal counseling was to be conducted if an employee's unsatisfactory performance continued, or upon recurrence of an employee's unsatisfactory performance. Id. An investigatory interview was the questioning of an employee, who at the time of such questioning appeared to be a likely target for disciplinary action. Id.
Plaintiff was informally counseled on July 21, 1995 by Pulver; on February 27, 1996 by Pulver and McCauley; and on May 29, 1998 and August 18, 2000 by McCauley. She was formally counseled on October 19, 2000, by McCauley and Desiree Benet ("Benet"), a Senior Caseworker at MCDSS. Plaintiff was subjected to an investigatory interview that began on January 9, 2001, and was concluded on January 29, 2001. There she was questioned about her work performance, which had been delineated in a document entitled "Investigatory Interview." Plaintiff appeared at the investigatory interviews with Federation President John Joseph Vasko Jr. ("Vasko"), Federation Grievance Co-chair for Services Joyce Rumpf ("Rumpf") and Federation Representative Margaret Capuano (January 9, 2001 session only). MCDSS Deputy Director Diane Larter, MCDSS Staff Development Coordinator Guy Valone, Oinen, McCauley and Benet attended the sessions on behalf of the MCDSS.
Defendant alleges that during the course of the investigatory interview, plaintiff provided conflicting statements. Plaintiff, however, disputes that assertion,
insofar that it suggests that any such alleged conflicts demonstrate that she was being less than forthright in responding to questions. The evidence obtained in this matter demonstrated that the plaintiff's illness combined with the inordinate length of the proceeding and the lack of sufficient time to prepare for the line of questioning resulted in confusion on the part of the plaintiff. Plaintiff further states that any effort she made to correct information that was mistaken initially, was viewed as her "changing her story" or being less than forthright. As such, she was in a no win situation.
Pl.'s Statement of Facts ¶ 32.
Plaintiff was suspended with pay effective January 29, 2001, and her employment with the County was terminated by Schauseil on February 9, 2001. Schauseil claims he terminated her based upon the information that Larter had provided to him following the investigatory interview, along with her recommendation. The County's notice of disciplinary action, sets forth the basis for the County's termination of plaintiff, and states in pertinent part:
As a result of your falsification of agency records, inconsistent and inadequate documentation, poor judgment and failure to maintain appropriate professional boundaries, you are terminated from your casework position with the Department of Social Services effective this date, February 9, 2001.
Def.'s Ex. G.
On February 23, 2001, the Federation filed a grievance on plaintiff's behalf. The County denied the grievance, and the Federation then moved the grievance to arbitration. Per the Federation's request, Douglas Bantle ("Arbitrator Bantle") was selected as the arbitrator. The arbitration was held on May 8 and 18, and June 8 and 18, 2001. Jean Zimber ("Zimber") was the Federation's lead defense representative on behalf of plaintiff. Plaintiff, Vasko, Zimber, Rumpf and Mary Jo Marshall ("Marshall"), the Federation's vice president, attended all four days of the arbitration. Both the County and the Federation presented witnesses, including both McCauley and plaintiff, all of whom were sworn.
Defendant contends that during the arbitration, plaintiff: provided radically different answers to the same questions; changed her story as to how certain events occurred; and backtracked on her explanations. For example, plaintiff had alleged that her automobile sustained a foot long dent in an incident in the Civic Center parking garage ("Parking Garage Incident"). During the course of the arbitration, plaintiff told Arbitrator Bantle that her car still bore the damage from the Parking Garage Incident. Arbitrator Bantle and the other arbitration participants went out to look at the alleged damage to plaintiff's car, but found no damage, though plaintiff contends that some noticed recent repair work. Rumpf, who presented plaintiff's case at the arbitration, was deposed on this point. She characterized plaintiff's testimony as "conflicting," and observed, "[t]hat doesn't mean it wasn't credible, just from an outside observation it lends itself to a lot of questions." Rumpf Dep. at 56.
After the County and the Federation presented their respective witnesses, the arbitration was concluded. Following the conclusion, both the County and the Federation submitted post-hearing briefs to the arbitrator.
Sometime prior to the last day of testimony at the arbitration, the County offered to settle the case with plaintiff. The Federation president, John Joseph Vasco, Jr., related the terms of the offer as follows:
To allow [plaintiff] to resign, to pay out her vacation bank, which she would lose being terminated. So there was some discussion about medical expenses, and a figure of a thousand dollars was included in addition to the vacation time. The county was not — the county did not want [plaintiff] to ever apply for a county position again. The county would not contest unemployment, or I thank at that time there was — they were contesting an unemployment claim, and her benefits had actually stopped, and there was a hearing that was going to be going on with unemployment. So that would have ended. I think that's it.
Vasco dep. at 70-71 (attached to Def.'s Mot. for Summary J. as Ex. QQ).
While the settlement discussions occurred between the Federation and the County during the arbitration, no negotiations occurred after the conclusion of the arbitration, until September, 2001. At that time, Arbitrator Bantle stated that he was going to rule in favor of the County, and find that it had proven its falsification of records charge against plaintiff, and consequently sustain the County's termination of plaintiff. Specifically, Arbitrator Bantle stated that he would sustain MCDSS's discharge of plaintiff, because he believed that she was not competent to do the work of a caseworker.
Plaintiff never applied for FMLA leave that was refused or denied. Plaintiff acknowledged that the MCDSS would be justified in terminating an employee who intentionally falsified casework records. Plaintiff never served a New York State General Municipal Law § 50-i notice of claim upon the County or the MCDSS from January 1, 1998, until the above-entitled action was commenced.
After Arbitrator Bantle indicated that he would rule in favor of the County, the Federation inquired whether the County's prior offer of settlement was still open and the County responded stated that it was. The Federation attempted to communicate the County's offer of settlement to plaintiff, without success. Nevertheless, the Federation, acting as plaintiff's advocate in connection with the entire disciplinary process under the County-Federation contract, settled the matter with the County in a written agreement. MCDSS Exhibit J (Settlement Agreement). In light of the settlement, Arbitrator Bantle never issued a decision.
STANDARDS OF LAW
Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) ( en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once that burden has been met, the burden then shifts to the non — moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Of course, it is well settled that courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted). However, the general rule holds and a plaintiff may not defeat a motion for summary judgment merely by relying upon "purely conclusory allegations of discrimination, absent any concrete particulars which, if believed, would show discrimination." Id., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
McDonnell Douglas
Title VII and ADA claims are governed by the three-part analytical framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973). Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003); Aka v. Washington Hosp. Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998); see also Klausner v. Industrial Risk Insurers, Inc., 1999 U.S. Dist. LEXIS 10219, 1999 WL 476285, at *3 (S.D.N.Y. July 8, 1999) (applying McDonnell Douglas to N.Y. Human Rights Law claim). Under the McDonnell Douglas standard, a plaintiff bears the burden of proof and must ultimately establish, by a preponderance of the evidence: (1) membership in a protected group; (2) qualification for a position; (3) an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997). To establish that the adverse employment action occurred under circumstances giving rise to an inference of discrimination, a plaintiff may demonstrate that "similarly situated" employees who do not share the plaintiff's protected characteristics were treated preferentially. Id.
"New York state courts have adopted the above analysis for discrimination actions arising under the New York State Human Rights Law. . . ." Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (citations omitted).
Requirements for establishing a prima facie case are minimal. See Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998). If a plaintiff is successful in demonstrating a prima facie case, then the burden shifts to his employer to articulate a legitimate, nondiscriminatory purpose for its adverse employment action. Id. at 153 (citing McDonnell Douglas, Corp. v. Greene, 411 U.S. 792, 802 (1973)). The Second Circuit has held that "[a]ny such stated purpose is sufficient to satisfy the defendant's burden of production; the employer does not have to persuade the court that the stated purpose was the actual reason for its decision." Austin v. Ford Model, Inc., 149 F.3d at 153.
Once the employer satisfies its burden, a plaintiff may prevail only if he presents evidence that the employer's proffered reasons are a pretext for discrimination. Id. To demonstrate pretext, plaintiff must show both that the proffered reason was false and that discrimination was the real reason. Id. In a case where the Supreme Court applied the McDonnell Douglas criteria to an Age Discrimination in Employment Act claim, the Court held that a plaintiff's prima facie case, combined with sufficient evidence for a reasonable fact finder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Justice O'Connor, writing for a unanimous Court, said, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id.; see also Regional Economic Community Action Program, Inc. v. United States, 294 F.3d 35, 49 (2d Cir. 2002). "For the purposes of defeating the defendants' motion for summary judgment, the plaintiff need only raise a material factual issue as to whether the defendants' reason for firing the plaintiff constituted a pretext." Visco v. Community Health Plan, 957 F. Supp. 381, 388 (N.D.N.Y. 1997).
Following the Supreme Court's decision in Reeves, the Second Circuit decided Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000). In Schnabel, the Second Circuit determined that Reeves had not eliminated the possibility of summary judgment for a defendant in discrimination cases when a plaintiff had proven a prima facie case and offered evidence that only the employer's proffered reason was false. Quoting from Reeves, the Second Circuit explained that,
[i]n examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that an ADEA claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no ADEA defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Reeves, 530 U.S. at 143 (internal quotation marks omitted); see also Vadie v. Mississippi State Univ., 218 F.3d 365, 374 n. 23 (5th Cir. 2000) (concluding after Reeves that a prima facie case plus pretext evidence may be enough to permit a finding of discrimination, but will not always be sufficient, with the ultimate issue remaining whether the evidence in the record as a whole "creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains"). Accordingly, summary judgment might still be appropriate in this matter.Schnabel, 232 F.3d at 90-91.
Though Reeves and Schnabel involve the Age Discrimination in Employment Act, the cases analyze the same McDonnell Douglas factors applied in retaliation claims, such as the one at bar. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (ADEA claims analyzed under same framework as any other Title VII claim); Gonzalez v. New York City Transit Authority, No. 00 CIV. 4293 SHSAJP, 2001 WL 492448 (S.D.N.Y. May 9, 2001) (applying Schnabel to racial discrimination case).
Title VII Standard
Title VII "makes it unlawful for an employer to discriminate against any individual with respect to the `compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Richardson v. New York State Department of Correctional Services, 180 F.3d 426, 436 (2d Cir. 1999) (citations omitted). In order to prove retaliation, the Court must analyze such claim under the familiar three-part burden shifting analysis first set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), discussed in detail above. In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Tomka v. Seiler, 66 F.3d 1295, 1308 (2d Cir. 1995). However, "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'." Id. (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)) (other citations omitted).
ADA Standard for Disability
The ADA prohibits discrimination in the hiring, advancement, or discharge of an otherwise qualified employee because of such individual's disability. Cavallaro v. Corning Incorporated, 93 F. Supp. 2d 334 (W.D.N.Y. 2000); 42 U.S.C. § 12112(a). "To establish a prima facie case of disability discrimination, a plaintiff must show: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered [an] adverse employment action because of his disability." Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2nd Cir. 2003) ( citation omitted); Cavallaro, 93 F. Supp. 2d at 342.
"Under the ADA a `disability' is: 1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment . . ." Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790, 797 (W.D.N.Y. 1996); 42 U.S.C. § 12102(2). "A physical impairment, standing alone, does not necessarily constitute a disability under the ADA," since an impairment "may affect an individual's life without becoming disabling." Cavallaro, 93 F. Supp. 2d at 343 (quoting Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703 (S.D.N.Y. 1997)). Therefore, plaintiff must demonstrate that the impairment "substantially limits" one or more of her "major life activities." Cavallaro, 93 F. Supp. 2d at 343.
The ADA's requirement that, in order to constitute a disability under its terms, an impairment must substantially limit a major life activity underscores that "the impairment must be significant, and not merely trivial." Sutton, 130 F.3d at 898 (citation omitted); see also Runnebaum v. Nationsbank of Maryland, 123 F.3d 156, 167 (4th Cir. 1997) ( en banc) (same); Byrne v. Board of Educ., 979 F.2d 560, 564 (7th Cir. 1992) ("The statute's inclusion of the limiting adjectives `substantial' and `major' emphasizes that the impairment must be a significant one.") (RHA case). That is, not any limitation, but only a "substantial" limitation, of not any life activity, but only a "major" life activity, will constitute a disability within the meaning of the statute. See Ryan, 135 F.3d at 870 ("In assessing whether a plaintiff has a disability, courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities."); Knapp v. Northwestern Univ., 101 F.3d 473, 481 (7th Cir. 1996) ("Not every impairment that affects an individual's major life activities is a substantially limiting impairment.").Reeves v. Johnson Controls World Servs., 140 F.3d 144, 151 (2d Cir. 1998). Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(I).
"Substantially limits" means that an individual is: 1) unable to perform a major life activity that the average person in the general population can perform; or 2) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). "To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999). Moreover, "[a] person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently `substantially limits" a major life activity.'" Sutton, 527 U.S. at 482-483.
With regard to a perceived disability, the rule is settled:
In determining whether a given "disability" conforms with the definition set forth by the ADA, courts must engage in a tripartite analysis. First, in cases claiming perceived disability, a court must determine whether a plaintiff was viewed or was recorded as having an impairment. Second, it must determine whether that impairment, as perceived or recorded, affects a "major life activity" as the ADA defines that term. Finally, the court must consider whether plaintiff's perceived or recorded disability is one that, if it existed, would substantially limit the identified major life activity. Colwell v. Suffolk Cty. Police Dept., 158 F.3d 635, 641 (2d Cir. 1998). This third requirement ensures that only significant impairments (and perceptions and records thereof) are covered by the ADA. Id. at 642.Temple v. Bd. of Educ., 322 F. Supp. 2d 277, 279 (E.D.N.Y. 2004). Like Title VII, ADA claims are analyzed under the McDonnell Douglas standard. Lee v. ITT Standard, 268 F. Supp. 2d 315, 333 (W.D.N.Y. 2002).
New York Human Rights Law Claim
Plaintiff also makes a claim under the New York State Human Rights Law, codified at New York Executive Law § 296. That statute makes it an unlawful discriminatory practice
for an employer or licensing agency, because of the age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
N.Y. EXEC. LAW § 296(1)(A). The Court notes that the elements of Title VII and New York Discrimination Law claims "can be analyzed, for purposes of determining sufficiency of the evidence, in a manner virtually identical to those under Title VII." Gallagher v. Delaney, 139 F.3d 338, 345 (2d Cir. 1998).
DISCUSSION
Notice of Claim for New York Statutory Causes of ActionAt oral argument, plaintiff's counsel candidly conceded that failure to file a Notice of Claim under New York State General Municipal Law § 50-i bars her cause of action under the New York Human Rights Law. In that regard, the Court find that § 50-i of the General Municipal Law is not applicable to plaintiff's claim. Baker v. County of Monroe, 47 F. Supp. 2d 371, 375 (W.D.N.Y. 1999) ("The Notice of Claim provisions of General Municipal Law section 50-i do not apply to a N.Y. Human Rights Law, Executive Law section 296, cause of action."); Palmer v. City of New York, 215 A.D.2d 336 (N.Y.App.Div. 1995); Mills v. County of Monroe, 89 A.D.2d 776 (N.Y.App.Div. 1982), aff'd 59 N.Y. 2d 307 (1983). However, the Court determines the broader County Law § 52 requirement of a notice of claim does apply and does indeed bar plaintiff's Human Rights Law claims. Mills, 59 N.Y.2d at 308 ("When an employment discrimination action is brought against a county under the State or Federal civil rights statutes, the failure to timely file a notice of claim shall be fatal unless the action has been brought to vindicate a public interest or leave to serve late notice has been granted by the court."). Thus, plaintiff's New York claims must be dismissed.
ADA
Defendant contends that plaintiff was not disabled under the definitions in the ADA. Plaintiff counters that the testimony of her primary care physician supports her contention that she did have a disabling condition. However, at oral argument, the Court postulated that plaintiff had not shown she was disabled under the ADA's definition, and plaintiff's counsel agreed, arguing instead that defendants perceived plaintiff as disabled. In addition to counsel's concession, the Court independently finds that plaintiff's evidentiary proof in admissible form does not support her argument that she was disabled.
As defendant points out in its reply papers, plaintiff's claims of disabling conditions appear to be a moving target. See Stark Decl. ¶¶ 11-16. Plaintiff's primary care physician, Dr. Quill, testified at his deposition that plaintiff suffered from the symptoms of depression and panic attacks to varying degrees throughout the years, but when directed by defense counsel to the period encompassed by November 1999 through November 2001, he responded as follows:
The list of disabling conditions has included: depression; panic attacks; dental work; Lichenplanus; migraine headaches; high blood pressure; bi-polar disorder; and carpal tunnel syndrome. However, at the outset of Dr. Quill's deposition, plaintiff's counsel stipulated that plaintiff's claimed disabilities were: "depression, carpal tunnel, high blood pressure and bi-polar." Quill Dep. (Jan. 9, 2003) at 4-5.
Q. So I understand you, when did you believe that the symptoms were greater?
A. I think from — from this time, November, 99, maybe until November of '01 she seems to be doing better. I did obtain a psychiatric consultation at that time with Dr. Biviano. We did change her medications around and she was diagnosed I think for the first time with bipolar disorder during that period.
Later in his deposition, Dr. Quill explained that Dr. Biviano was a psychiatrist. Quill Dep. at 39:8-9.
Quill Dep. at 25, 26:3-11; Richter Aff. ¶ 8. Later in the same deposition, Dr. Quill testified more about plaintiff's depression during that two year period, saying,
A. I think that's — that would be the first time that there's a clear note that she is feeling better in terms of her depression. And let me just see if that's sustained as far as my notes have it. Yes. . . .
Quill Dep. at 27. In discussing the two-year period from November, 1999 to November, 2001, Dr. Quill was asked the following questions and gave the following answers:
Q. Okay. What I'm trying to find out is whether Ms. Richter's depression based upon your diagnosis constituted a physical or mental impairment starting in 1999.
A. For that two year period?
Q. Yes.
A. I think her depression was a significant mental impairment and — and mental impairments also have physical bases.
So in that sense it was a physical and mental impairment, but I think she had trouble with concentration.
I think all of those things were happening much more than they had in the past and for more of a sustained period of time.
Q. And during the two-year period of time that we were talking about, what if any physical impact did you determine that Ms. Richter's depression had on her?
A. She would have sleep disturbance I think, concentration disturbance. She would have poor energy. Probably those are some of the main ways it affected her physically.
Q. Now, during that two year period of time we've been discussing, you said the depression acted as a mental impairment. In what way?
How did it affect Ms. Richter's mental functioning based upon your examination and history and your diagnosis?
A. I would said she would have trouble concentrating. Her energy was very poor. I don't have any primary data about her performance at work, but she was clearly having trouble at work.
I think her thought processes were preoccupied by all the trouble she was having. So her sense of enjoyment of life was completely not there.
She was quite profoundly depressed, and with the suicidal ideations, dangerously so during that period.
Quill Dep. at 35-36. However, when asked what major life activities were affected by her disabilities, Dr. Quill responded:
I don't have any documentation of it, but my recollection is that — that this would have impaired her life in other areas other than work; that probably her ability to conduct her own affairs at home would be very limited. Activities with her family would be very limited.
Quill Dep. at 37 (emphasis added). He also testified that the period from January 26, 2001 until approximately August 1, 2001, she had suicidal ideation and he was "concerned about her ability to function." Quill Dep. 38, 39. With regard to her panic attacks, Dr. Quill testified that over her lifetime, he was sure they limited the things she did, but had no specific examples. Quill Dep. at 40. Asked to describe what effect, if any, her depression had on her ability to physically function on a daily basis, Dr. Quill answered, "I would say when her depression and panic were very active I think she had a hard time functioning. . . . A hard time concentrating, a hard time relating to people, a hard time sleeping, a hard time thinking." Quill Dep. at 41.
Plaintiff, in her affidavit in opposition to the motion, states that,
From November, 1999 through November, 2001 my depression worsened greatly in intensity impairing my ability to concentrate, resulted in severe sleep disturbance to me, sapped my energy, severely limited my ability to function at home and at work (without reasonable accommodation). During this time frame, I was not able to grocery shop, clean my house, garden, socialize, take care of household chores, bills, bank accounts and various other daily activities. Although I was able to perform the essential functions of my job, I needed reasonable accommodation to do so as expected. I was refused any such requests for reasonable accommodation which are discussed later in this Affidavit. Also during this time frame the frequency and intensity of my panic attacks increased. During a panic attack I am unable to function to any degree until the attack subsides. Sometimes a panic attack would last only minutes and at other times the attack would last in excess of one or more hours. At work, I do not believe that any of my panic attacks exceeded more than one half hour. Richter Aff. ¶ 7. This is not sufficient proof of a disability as defined under the ADA. See Sutton v. United Airlines, Inc., 527 U.S. 471, 492-93 (1999) ("Assuming without deciding that working is a major life activity and that the EEOC regulations interpreting the term `substantially limits' are reasonable, petitioners have failed to allege adequately that their poor eyesight is regarded as an impairment that substantially limits them in the major life activity of working."). Plaintiff's reliance on Bragdon v. Abbott, 524 U.S. 624, 631 (1998) is misplaced. In that case, the Supreme Court determined that reproduction was a major life activity. In contrast, plaintiff has cited only to her inability to engage in grocery shopping, house cleaning, gardening, socializing and performing household chores, such as bill paying. This does not amount to evidentiary proof sufficient to meet her burden of proof to show she was substantially limited in a major life activity.
As an alternative argument, plaintiff suggests that she was regarded as disabled by her employer, arguing that
to state a claim under the "regarded as" prong of the ADA, the plaintiff must "allege that the employer believed, however erroneously, that the plaintiff suffered from an `impairment' that, if it truly existed, would be covered under the statue and that the employer discriminated against the plaintiff on that basis." Francis v. City of Meriden, 129 F. 3d 281, 285 (2d Cir. 1997).
Pl.'s Mem. of Law at 22. In support of this argument, plaintiff submits in her affidavit that
McCauley frequently made comments to me about my medical condition as it related to my work. She made it very clear to me through her commentary that she considered it an inconvenience that she had to deal with my medical leaves of absence and my attendance at doctor's appointments. Ms. McCauley also questioned me directly about my condition by asking me questions about my diagnosis and my prognosis and demanded that I bring her statements from my doctors or she "would take it up higher". . . . McCauley even referred to me as being "crazy" on a number of occasions. Richter Aff. ¶ 11. Plaintiff argues that regardless of whether she was actually disabled, her employer considered her disabled and denied her the reasonable accommodations she requested as a result of her disability, while granting accommodations to those employees plaintiff did not perceive as disabled. Pl.'s Mem. of Law at 3-4. However, defendant responds that none of plaintiff's supervisors or administrators regarded her as disabled. Def.'s Mem. of Law at 17; McCauley Decl. ¶¶ 53-56.
The Court determines that plaintiff's allegation that defendants perceived her as disabled is likewise not supported by evidentiary proof in admissible form. The "decisive issue is the employer's perception of his or her employee's alleged impairment." Giordano v. City of New York, 274 F.3d 740, 748 (2d Cir. 2001). Here, plaintiff continued to work in her position throughout the investigatory process and was not limited by her employer. Plaintiff's evidence fails to show that defendant "perceived h[er] as substantially limited in h[er] ability to perform a major life activity — in this case, `working.'" Id. Even viewing the evidence in the light most favorable to plaintiff, and crediting plaintiff's statements that one or more of defendant's employees referred to her as "crazy," asked questions about her medical condition, and demanded medical statements from plaintiff's doctors, these facts do not show that defendants considered plaintiff to be substantially limited in her ability to perform her job as a result of her medical condition.
Assuming, for the sake of argument, that plaintiff had met her de minimus burden of showing she was perceived as disabled, defendant has met its burden under McDonnell Douglas of coming forward with a non-discriminatory reason for each of the actions about which plaintiff complains. Specifically, plaintiff: falsified County records; continued to demonstrate poor casework judgment, especially with regard to professional boundaries; was excessively late in submitting progress notes, which themselves were inaccurate; mismanaged her time; and was insubordinate. Moreover, plaintiff has failed to come forward with evidentiary proof in admissible form that defendant's proffered reasons were false and that a motivating reason for her termination was discrimination.
Title VII — Retaliation
Plaintiff also alleges in her complaint that she was terminated in retaliation for asserting her rights by way of a letter from her attorney on January 21, 2001. In the letter, plaintiff's attorney opined that plaintiff was being subjected to adverse employment actions which she alleged "are the result of discriminatory animus based upon her medical disabilities and use of the FMLA." Donna Marianetti, Esq. letter to Guy Vallone, Human Resources Representative (Jan. 21, 2001) at 1 (attached to Def.'s Appendix as Ex. YY). Since she was discharged on February 9, 2001, plaintiff alleges a temporal proximity between the attorney letter and her termination. Compl. ¶ 28.
"The critical question is whether a plaintiff has proven by a preponderance of the evidence that the defendant intentionally discriminated or retaliated against the plaintiff for engaging in protected activity." Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990) (quoting Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984)). The Court notes that for the purposes of a retaliation claim under Title VII, plaintiff has met her burden of proving a prima facie case. As required under the McDonnell Douglas framework, defendant has come forward with a nondiscriminatory reason for the termination. The Court must, therefore, determine "whether the plaintiff could satisfy h[er] `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff. . . .'" Schnabel, 232 F.3d at 90-91 (quoting Reeves, 530 U.S. at 143) (internal quotation marks omitted).
Temporal proximity alone is insufficient to carry plaintiff's burden of proof beyond the prima facie stage, and nothing she has submitted shows that she will be able to persuade a fact-finder that the retaliation played a part in her termination. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1180 (10th Cir. 1999) ("Assuming the time between Plaintiff's termination and filing her EEOC claim is sufficient to survive summary judgment in regard to establishing a prima facie case, it cannot overcome Defendant's proffered reason for terminating her. The evidence overwhelmingly supports Defendant's proffered reason and Plaintiff presents nothing which would cause a reasonable finder of fact to determine that the reason is unworthy of belief.").
Here, the evidentiary proof in admissible form, even when viewed in the light most favorable to plaintiff, establishes that defendant's explanation for her termination, as detailed above, "was not pretextual and that no impermissible motive played a part in the decision [to terminate plaintiff]." C.f. Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990) (safety violation charge was pretextual and insubordination charge was insufficiently serious to warrant firing). The evidence overwhelmingly supports defendant's proffered reason for termination: poor performance. Other than temporal proximity, plaintiff presents nothing that would cause a reasonable fact finder to determine that defendant's reason is unworthy of belief and to infer that retaliation played a part in the decision to terminate her. Defendant documented repeated difficulties plaintiff displayed during the years 1995, 1996, 1999 and 2000, which had become progressively worse over time. Defendant initiated the formal process to either reform or terminate plaintiff, a union employee, more than three months prior to the January 21, 2001 letter from plaintiff's lawyer to defendant. Defendant is entitled to summary judgment on plaintiff's retaliation claim.
CONCLUSION
Accordingly, the defendant's motion (# 20) for summary judgment is granted, and the case is dismissed.