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treating signed, albeit unsworn, submissions by pro se plaintiff as complying with Local Rule 56.1
Summary of this case from Brown v. General Instrument Corp.Opinion
93 Civ. 5184 (NRB)
November 30, 2000
OPINION AND ORDER
Plaintiff Richard A. Wheeler ("plaintiff" or "Wheeler"), appearing pro se, brings this action against New York City Comptroller's Office ("Comptroller's Office"), New York City Corporation Counsel's Office ("Corporation Counsel"), and four individual city officials. Plaintiff alleges that because he is fifty-one years old, disabled, Black and male, defendants discriminated against him in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the Americans With Disabilities Act of 1990, ("ADA"), 42 U.S.C. § 12112 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Equal Pay Act, ("EPA"), 29 U.S.C. § 201 et seq.. Plaintiff further alleges that defendants retaliated against him because he filed an out-of-title action, initiated an Equal Employment Opportunity complaint, and sent a letter of complaint to the Comptroller. Now pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, defendants' motion is granted.
I. BACKGROUND
A. Factual Background
Except as noted, all facts are either undisputed or construed most favorably to the plaintiff. Wheeler started work in the New York City Comptroller's Office in 1984 as a Special Investigator in the Personal Injury Division of the Bureau of Law and Adjustment. Decl. of Michael Tiliakos, Assistant Corporation Counsel (hereinafter "Tiliakos Decl."), Exhs. D, E. On May 25, 1988, the New York City Department of Personnel reclassified his position from that of "Investigator" to "Claim Examiner," although the salary remained unchanged. Id., Exhs. D, I. A month later, on June 28, 1988, plaintiff's labor union filed a grievance on his behalf alleging that since 1984, he had been working out-of-title as a "Senior Claims Examiner". Id., Exh. A.
On July 14, 1994, this grievance was settled and plaintiff was awarded back pay amounting to "the difference between the salary he received as a Claims Examiner and that of an Associate Claims Examiner, Level I for the period commencing July 18, 1990 and ending on the date his salary was adjusted to that of an Associate Claims Examiner." Tiliakos Decl., Exh. N.
On May 21, 1990, in a letter to Elizabeth Holtzman, then Comptroller, Wheeler sought a transfer out of the Law Division, claiming that he had been harassed in "retaliation for participating in the title grievance action" that was filed two years earlier but was still pending before the Office of Collective Bargaining. Tiliakos Decl., Exh. J. Plaintiff discussed transfer options with defendant Aaronson in July, 1990 and they agreed that plaintiff would be transferred to the Hearings Division.Id., Exh. K (Decl. of Michael Aaronson, at ¶ 4) (hereinafter "Aaronson Decl.").
Nearly a year later, Wheeler repeatedly sought a transfer out of the Hearings Division. In a letter to Comptroller Holtzman dated June 13, 1991, plaintiff cited his desire for "advancement to a higher position" of either Hearing Examiner, Associate Level II Claim Examiner, or Principal Administration Associate Level II or III. Aaronson Decl., Exh. 8. On February 29, 1992, he once again wrote to Comptroller Holtzman, this time seeking a promotion to Administrative Claim Examiner. Tiliakos Decl., at Exh. M. In March, 1992, plaintiff told defendant Aaronson that the Hearings Unit was too stressful and again requested a transfer to another division. Aaronson Decl., at ¶ 5.
On May 26, 1992, Wheeler was ultimately transferred to the Personal Injury Division. Aaronson Decl., Exh. 2. The next day, through a memo, plaintiff expressed his dissatisfaction with this outcome, and suggested that he was transferred in retaliation for (1) his February 29, 1992 letter to Comptroller Holtzman, (2) the June 28, 1988 out-of-title group grievance, and (3) "the recently filed EEO complaint." Id., Exh. 2. Plaintiff expressed his desire to work in the Real Property Division, Office of Contract Administration, or Settlement Division. In this same memo, plaintiff also mentioned, for the first time in this record, that he had injured his eye and had been under a doctor's care for nine months.
Plaintiff did report for duty at the Personal Injury Division, but continued to protest. On June 2, 1992, he once again requested a transfer, this time to two other divisions, alleging "disability discrimination." Aaronson Decl., Exh. 3. After his request was denied, Wheeler submitted a letter written by his ophthalmologist, Dr. Deborah Boston, describing his medical condition and suggesting that "[t]he comparatively moderate level of visual functioning required by his present position in the Hearings Unit [from which plaintiff had requested a transfer] appears to be more appropriate for him, where computer work is limited." Aaronson Decl., Exh. 5. Two days later, on June 10, 1992, Wheeler again requested transfer out of the Personal Injury division, complaining that his transfer occurred in retaliation for filing his 1988 out-of-title claim, and because of his race. Tiliakos Decl., Exh. Q. Plaintiff again mentioned his ongoing eye problems, and reported that had recently injured his left foot.
At the time Dr. Boston wrote her letter, plaintiff was still employed in the Hearings Unit and had not yet been transferred to the Personal Injury Division.
Plaintiff's request for a transfer was not acted upon, but in response to the information regarding plaintiff's injuries, defendants directed plaintiff to report for two medical examinations pursuant to N.Y. Civ. Serv. Law § 72, "to determine your physical fitness to perform the duties of your position." Tiliakos Decl., Exh. S. Wheeler objected to the medical examinations, alleging they were retaliatory for his out-of-title action. Id., Exh. T. He also alleged that Caucasian employees were not subjected to Section 72 medical examinations. Nevertheless, on August 19, 1992, plaintiff was examined by Mt. Sinai Medical Center opthamologist Dr. Scott E. Brodie who certified "that the employee is medically fit to perform the duties of the employee's position" but would "require a period of medical leave for convalescence" if he receives eye surgery. Id., Exh. V. The following week, Dr. Arthur L. Martles examined Wheeler's foot and concluded that plaintiff was "temporarily unable to perform the full duties of his title. It can be anticipated that in time and with treatment he should be able to perform his full duties." Id, Exh. U.
Plaintiff's grievances abated for a while, but one year later, on July 23, 1993, plaintiff once again claimed that he was being retaliated against because of his 1988 out-of-title claim. Tiliakos Decl., Exh. W. Plaintiff repeated these allegations on November 9, 1993, id., Exh. FF, and in 1994 made several additional requests for transfers, which were all denied. Id., Exhs. X, Y, AA, CC, DD. He also filed a grievance with the Office of Labor Relations alleging that he was improperly denied a promotion or transfer. On November 4, 1994, the Labor Relations Review Officer denied the grievance, finding that defendants had not violated the Collective Bargaining Agreement, and that defendants had made appropriate accommodation to plaintiff's medical problem. Id., Exh. EE.
On January 27, 1997, in a personnel action, defendants charged Wheeler with incompetence, misconduct and insubordination based on a number of incidents. Tiliakos Decl., Exh. GG. Plaintiff entered into a stipulation to resolve the charges on June 13, 1997 in which he did not admit to any of the charges or allegations against him, but agreed to serve a forty-five day suspension without pay. Id., Exh. HH. Precisely two weeks later, Wheeler left the Comptroller's Office, having accepted another civil service position in another New York City agency.
B. Procedural History
On August 19, 1992, Wheeler filed race, sex, age, and disability discrimination charges, as well as a retaliation claim, with the Equal Employment Opportunity Commission ("EEOC"). Complaint, Exh. B, and filed the instant action with this Court on July 26, 1993. On May 26, 1998, plaintiff filed a motion for summary judgment, which was denied by Judge Richard M. Berman. A year later, the case was reassigned to me.
On July 30, 1993, Judge John S. Martin, to whom the case had been originally assigned, dismissed plaintiff's Title VII and ADA claims with leave to amend because plaintiff failed to allege that he received a Notice of Right to Sue letter regarding those claims. A Notice of Right to Sue letter was issued by the United States Department of Justice on September 1, 1993, and these claims were thereafter reinstated.
On April 7, 2000, defendants filed this motion for summary judgment. Plaintiff opposed the motion by filing a "Motion for Declaratory Judgment, The Right to Trial by Jury and Plaintiff's Response to Defendants Motion for Summary" and a sur-reply which he entitles, "Answer to Defendant's Declaration". These documents are both unsworn. See 28 U.S.C. § 1746 (statements subscribed as true under penalty of perjury have same force and effect as sworn statements). Plaintiff did not file a Local Rule 56.1 Statement.
Although plaintiff did not submit an affidavit or affirmation in opposition to defendants' motion for summary judgment, "it is clear from his submission of . . . exhibits, that he understood the nature and consequences of summary judgment, including his obligation to contradict the defendant['s] Rule 56.1 statement . . . and affidavits in order to preserve factual issues for trial." Beharry v. M.T.A. New York City Transit Auth., No. 96-CV-1203(FB), 1999 WL 151671, at *1 (E.D.N.Y. Mar. 17, 1999) (citing Vital, 168 F.3d at 620-21). In light of plaintiff's pro se status, I will treat his signed, albeit unsworn, submissions as complying with the local rule. However, to the extent that plaintiff's papers do not raise objections to defendants' Local Rule 56.1 Statement, the allegations of defendants' Local Rule 56.1 Statement shall be deemed true. Marks v. New York Univ., 61 F. Supp.2d 81, 84 (S.D.N.Y. 1999).
II. DISCUSSION
A. Statute of LimitationsIn order to sustain a claim of unlawful discrimination in New York under Title VII, the ADA, and the ADEA, a plaintiff must file administrative charges with the EEOC within 300 days of the alleged discriminatory acts. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626 (d)(2); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328-29 (2d Cir. 1999) (ADA and ADEA); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708. 712 (2d Cir. 1996) (Title VII). Should the employee fail to do so, any subsequent complaint filed in federal district court will be time-barred.
Wheeler filed charges with the EEOC on August 19, 1992. Complaint, Exh. B. Thus, any claims regarding discriminatory conduct which occurred before October 24, 1991 — the 300-day mark — are time-barred. See Van Zant, 80 F.3d at 712. B. Summary Judgment Standard
Defendants indicate that plaintiff filed his EEOC charge on August 21, 1992, see Defendants' Memorandum of Law, at 26, however, the charge is clearly dated by plaintiff and stamped "received by the EEOC" on August 19, 1992. See Complaint, at Exh. B.
Defendants argue, incorrectly, that the applicable time limitation period is 180 days after the alleged discrimination. See Defendant's Memorandum of Law, at 26.
Summary judgment is properly granted "`if 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 material fact and that the moving party is entitled to judgment as a matter of law.'" R.B. Ventures. Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In reviewing the record, the district court must assess the evidence in "a light most favorable to the nonmoving party" and resolve all ambiguities and "draw all reasonable inferences" in its favor. American Casualty Co. v. Nordic Leasing. Inc., 42 F.3d 725. 728 (2d Cir. 1994);see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nonetheless, the non-moving party must affirmatively set forth at least some facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.
We are mindful that summary judgment is "ordinarily inappropriate" in the context of a workplace discrimination case because the allegations usually require an exploration into an employer's true motivation and intent for making a particular employment decision. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). Thus, "trial courts must be especially chary in handing out summary judgment in discrimination cases." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); see also Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) ("Employers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.").
However, this caution does not absolve the plaintiff from the responsibility of producing sufficient evidence from which a reasonable juror could return a verdict in his favor. See Anderson, 477 U.S. at 249-50 (1986); see also Lane v. Sotheby Parke Bernet. Inc., 758 F.2d 71, 72 (2d Cir. 1985) (affirming grant of summary judgment in Title VII action where plaintiff failed to establish prima fade case). Even a pro se litigant such as plaintiff, who is entitled to liberal treatment by the Court, must present the Court with more than a "scintilla of evidence" demonstrating the validity of the claim. Tramble v. Columbia Univ., No 97 Civ. 1271 (RWS), 1999 WL 61826, at *13 (S.D.N.Y. Feb. 10, 1999).
C. ADA. ADEA. and Title VII Claims
Because Wheeler's ADA, ADEA, and Title VII claims share a common analytic framework, we discuss them together in that context.
1. McDonnell-Douglas Burden Shifting Analysis
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), the United States Supreme Court articulated a three-step burden shifting analysis for courts to apply when analyzing Title VII claims, which has subsequently been extended to govern ADEA and ADA claims. See Trans World Airlines v. Thurston, 469 U.S. 111, 121 (1985) (ADEA); Heyman v. Queens Village Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999) (ADA). This three-step analysis was most recently reviewed by the Court last Term in Reeves v. Sanderson Plumbing Prods. Inc., 120 S. Ct. 2097, 2105-06 (2000).
Under the burden shifting framework, a plaintiff must first establish a prima facie case of discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citation omitted); Burdine, 450 U.S. at 252 (citation omitted); McDonnell Douglas, 411 U.S. at 802. At the prima facie stage, the burden of proof for a plaintiff in an employment discrimination action is de minimus. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's rejection. See McDonnell Douglas, 411 U.S. at 802; Cruz v. Coach Stores. Inc., 202 F.3d 560. 567 (2d Cir. 2000). If the defendant is able to provide evidence of a nondiscriminatory basis for his decision, then the burden reverts to the plaintiff to demonstrate, by a preponderance of the evidence, that the employer's presumptively valid explanation was merely a pretext for discrimination. Reeves, 120 S. Ct. at 2105-06 (citing St. Mary's Honor Ct., 509 U.S. at 510-11. The ultimate burden of persuasion, of course, remains with the plaintiff. Burdine, 450 U.S. at 253.
2. Title VII and Age Discrimination in Employment Act (ADEA) Claims
To establish a prima facie case of both race and age discrimination, plaintiff must show: (1) membership in a protected class, (2) that he satisfactorily performed his job duties, (3) that adverse action was taken against him, and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination on the basis of membership in the protected class. McDonnell Douglas, 411 U.S. at 802; Ouaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995). Defendant argues that because Wheeler fails to establish the second of these elements, summary judgment is warranted on these claims. We agree.
Defendants concede that Wheeler, who is fifty-eight years old and African-American, belongs to the classes protected by the employment discrimination statues. See 42 U.S.C. § 2000e(2)(a); 29 U.S.C. § 631(a); Defendants' Memorandum of Law, at 4, 13. However, defendants assert that plaintiff fails to establish a prima facie case because he did not perform his job satisfactorily. In assessing whether an employee's job performance was satisfactory, courts are to rely on "the employer's criteria for the performance of the job — not the standards that may seem reasonable to the jury or judge."Thornley v. Penton Publishing, Inc., 104 F.3d 26, 29 (2d Cir. 1997). It is appropriate for the Court to rely on supervisors' evaluations and stated expectations for the employee, provided that the employee is allowed an opportunity to show that the employer's demands for the position were illegitimate or made in bad faith. Thornley, 104 F.3d at 29; Guider v. F.W. Woolworth Corp., No. 96 Civ. 3168 (LAP), 1998 WL 702275, at *8 (S.D.N.Y. Oct. 7, 1998) (citation omitted).
Plaintiff's yearly employment evaluations support defendants' contention. Four out of the five evaluations conducted after the limitations period began to run in October, 1991 show that plaintiff's performance was severely lacking. The July 20, 1993 evaluation rated plaintiff's performance as "conditional" because "he still require[d] much supervision in certain areas . . . [such as] the usage of forms, follow up of investigations and the updating of CIMS." Tiliakos Decl., Exh. BB (Decl. of Edward Ogintz, Exh. 6) (hereinafter "Ogintz Decl."). It was also noted that plaintiff had received "additional training and instruction" but showed "minimal improvement". Id. The evaluation also reveals that plaintiff was "previously cautioned . . . that he is not to be working on personal matters during working hours."
"Conditional" was the fourth-lowest rating on a five-level scale used in the performance evaluations. The scale included "Outstanding," "Superior," "Satisfactory," "Conditional," and "Unsatisfactory."
Plaintiff's next evaluation, dated November 3, 1994, rated his job performance as "unsatisfactory". Ogintz Decl., Exh. 7. The evaluator commented that plaintiff "had not made sufficient progress in investigating personal injury claims" since his July 20, 1993 evaluation, even though plaintiff's caseload was much smaller than those of his colleagues, having been "assigned only certain types of claims due to the problems that he was having in investigating the other types."Id. Defendants again cautioned Wheeler about conducting personal business during working hours, and when his behavior was deemed improper he became insubordinate — refusing his supervisor's requests and repeating the offending conduct. Moreover, although plaintiff's relations with co-workers remained satisfactory, his supervisors found him to be extremely uncooperative. Id.
In the third evaluation, dated April 4, 1995, Wheeler showed some improvement. Ogintz Decl., Exh. 8. His overall rating was "satisfactory," and he was deemed more organized and diligent than in the two prior years. In addition, the evaluator found real progress plaintiff's claims processing and adaptation to the new computer system. Wheeler still needed continued cautions "about working on personal matters during work hours. This was after numerous previous warnings were issued." Id. Plaintiff was also warned that "he is expected to comply with written or verbal instructions and directives that are given to him by supervisors or managers." Id.
This improvement was short-lived, however. Wheeler's fourth evaluation, conducted the following June, showed a marked deterioration in performance. He was given an overall rating of "unsatisfactory". Ogintz Decl., Exh. 9. Plaintiff's caseload continued to be limited by his inability to handle all types of claims. For the claims that he did review, the evaluator stated that he failed to conduct the most basic of investigations — for instance, many real property reports from the Department of Finance were missing, as well as most weather reports from his "snow and ice cases". Wheeler continued to use incorrect forms in his paperwork, disregarded instructions from his supervisors and became openly hostile on a few occasions. He also continued to "wander" into other departments and outside the building during working hours despite repeated directions not to do so. Plaintiff was also instructed, once again, "to refrain from conducting personal business during work hours."Id.
Plaintiff's fifth and final evaluation, dated March 4, 1997, Ogintz Decl., Exh. 10, echoed the several problems recognized in his earlier evaluations. Plaintiff's caseload was still limited and his investigations were incomplete and carelessly done. He continued to leave his work area without permission and conduct personal business during working hours. Wheeler's hostility and failure to follow his supervisors' directives made it "increasingly difficult to interact with him in a productive manner." Id. It was also noted that plaintiff has used a considerable amount of sick leave, most of which was documented by medical personnel. Plaintiff's flex-time privileges, however, were suspended "due to his unauthorized absences from his assigned work areas." Id. In this final evaluation, it was recommended that "disciplinary charges be filed against [plaintiff] for his continued unsatisfactory work performance, misconduct, and insubordination." Id.
As a result, on January 29, 1997, disciplinary charges were in fact filed against plaintiff for a number of incidents of incompetence, misconduct and insubordination detailed in these several evaluations. These charges were later resolved without any admission of guilt by plaintiff, but with his agreement to serve a forty-five day suspension without pay.
Thus, there is ample evidence in the record showing that although plaintiff's job performance may have improved slightly during a period in 1994-95, it was on the whole unsatisfactory since July 1992. But cf.Thornley, 104 F.3d at 29-30 ("Although misconduct indicates a high likelihood that an employee's performance is not satisfactory . . . it is at least theoretically possible that an employee committed some misconduct, and yet, in the aggregate, performed satisfactorily."). Plaintiff's supervisors gave him repeated verbal and written warnings that his poor job performance could result in further disciplinary sanctions or suspensions. See Sitkiewicz v. Initial Servs. U.S.A., No. 96 Civ. 8543 (DAB), 1999 WL 728643, at *5 (S.D.N.Y. Sept. 17, 1999), aff'd, 213 F.3d 626 (2d Cir. 2000). Moreover, the record indicates that plaintiff was given ample opportunity to improve his performance, but failed to do. See id., at *5. Because plaintiff has failed to show that he performed his job satisfactorily, he cannot establish a prima facie case of discrimination under Title VII and the ADEA. Defendants' motion for summary judgment as to these claims is thus granted.
Assuming, arguendo, that plaintiff had presented a prima facie case, defendants' motion for summary judgment would nonetheless be granted with respect to these two claims because defendants have articulated a legitimate, non-discriminatory reason for plaintiff's termination: namely, plaintiff was a sub-par employee. The discussion, supra, details the lengthy and detailed record of this evidence, and plaintiff provides no rebuttal evidence.
Where, as here, an employer presents evidence of unsatisfactory work performance as a legitimate reason for an adverse employment action, a plaintiff must rebut those reasons to survive a summary judgment motion.See Arkais v. Horan, No. 92 Civ. 9827 (LLS), 1997 WL 137450, at *1 (S.D.N.Y. Mar. 24, 1997); Anderson v. S.U.N.Y. Health Science Ctr., 826 F. Supp. 625, 631 (N.D.N.Y. 1993), appeal dismissed, 23 F.3d 396 (2d Cir. 1993), cert. denied, 512 U.S. 1245, 114 S. Ct. 2763 (1994).
Although plaintiff denies that he was a poor worker, he offers no competent evidence to support his unsworn assertions. Wheeler merely alleges that he was "charged with incompetence, misconduct, and insubordination" in retaliation for his out-of-title action. See Plaintiff's Amended Motion for Declaratory Judgment and Response to Defendant's Motion for Summary, at 2 (hereinafter "Plaintiff's Opposition"). The record does include evidence that plaintiff had received satisfactory evaluations and letters of recommendation and praise from his supervisors on a number of occasions earlier in his career. See Plaintiff's Opposition, Exhs. C, D. However, a number of these documents significantly post-date his 1988 out-of-title action and frequent transfer requests in 1990-91, thereby further weakening plaintiff's retaliation claims.
Except for a brief time in 1994-95, none of the documentary evidence presented suggests that plaintiff's job performance was satisfactory after 1992. Read most favorably to plaintiff, the record suggests that Wheeler's job performance was satisfactory when he started working for New York City in the 1980's but that his performance began to deteriorate significantly starting in 1992. Based on this record, no reasonable juror could find that plaintiff's performance was satisfactory to his employer. Thus, defendants' motion as to these claims is granted.
3. Americans with Disabilities Act (ADA) Claim
Plaintiff claims that defendants violated the ADA by failing to reasonably accommodate his eye condition in 1992. See Second Amended Complaint, at 3. However, because Wheeler is not "disabled" under the terms of the statute, summary judgment on this claim is also appropriate.
To assert a prima facie case of discrimination under the ADA, an employee must show that (1) the employer is subject to the ADA; (2) the employee was "disabled" within the meaning of the ADA; (3) the employee was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) the employee suffered adverse employment action because of his disability. Heyman v. Queens Village Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999); see Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998).
Defendants argue that plaintiff has failed to establish a prima facie case of disability discrimination because plaintiff is not a disabled individual within the meaning of the statute. Defendants' Memorandum of Law, at 23. Although plaintiff does not respond to defendants' legal arguments, he submits letters from his physicians to support his position.
In order for plaintiff to demonstrate that he was "disabled" under the ADA, he must show one of the following: (1) that he had a physical or mental impairment which substantially limited one of more of his major life activities, (2) that there exists a record of such impairment, or (3) that he was "regarded as" having such an impairment. 42 U.S.C. § 12102(2); see also Wernick v. Federal Reserve Bank of N Y, 91 F.3d 379, 383 (2d Cir. 1996). The determination of whether the employee is disabled must also be made "with reference to measures that mitigate the individual's impairment" and is an "individualized inquiry". Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 483 (1999).
Plaintiff's eye ailments were undisputedly physical impairments within the meaning of the statute, 29 C.F.R. § 1630.2(h)(1) (2000). Plaintiff, however, fails to allege that his condition substantially limits his ability to do any particular major life activity. Such functions include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working," 29 C.F.R. § 1630.2(i) (2000). See also Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563 (1999) ("seeing" is a major life activity). Construing the facts most favorably to Wheeler, we will assume that the major life activities of sight and work are implicated in this case. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( per curiam); see also Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) ( pro se papers should be read "to raise the strongest arguments that they suggest.").
Whether "working" is a major life activity was called into question by the Supreme Court's opinion in Sutton, 527 U.S. at 492 ("there may be some conceptual difficulty in defining `major life activities' to include work"). Nonetheless, without further clarification by that Court, we are bound by Second Circuit decisions that have held working to be a major life activity. See. e.g., Muller v. Costello, 187 F.3d 298, 312 n. 5 (2d Cir. 1999).
a. Plaintiff's Eye Conditions
Plaintiff has had myopia all his life "with moderately reduced vision in the right eye, and substantially reduced vision in the left eye." Tiliakos Decl., Exh. V; Plaintiff's Opposition, Exh. G. A September, 1991 accident involving a bungee cord injured plaintiff's left eye, causing "a partially dislocated, cataractous lens, a corneal scar, and elevated intraocular pressure in the left eye" — perhaps an indication of early glaucoma — which plaintiff treats with eye drops. Tiliakos Decl., Exh. V; Plaintiff's Opposition, Exh. G. On February 3, 1993, plaintiff underwent cataract surgery to his left eye, and wears an aphakic contact lens. See Plaintiff's Opposition, Exhs. D (Prescription from Dr. Richard S. Koplin), G (Sept. 5, 1996 and June 18, 1997 Letters from Dr. Richard S. Koplin).
The record does not show that plaintiff's eye problems — although undoubtedly serious — substantially limited his major life activities of seeing and working. Plaintiff's own testimony regarding this matter is telling. When asked at his deposition if he could not "perform these duties because of problems with your eyes", plaintiff replied under oath "No, I'm not saying that. If I have to get an eye operation and I'm sitting in front of a computer, I have been performing all of my duties — you know, I have been performing all my duties above the norm, you know." Tiliakos Decl., Exh. C (Plaintiff's Deposition, at 98). Plaintiff's own words thus indicate that his condition did not "substantially limit" his ability to see and work because "the condition, manner or duration" under which plaintiff could perform these activities was not significantly restricted "as compared to . . . the average person in the general population." 29 C.F.R. § 1630.2(j) (2000); see Albertson's, 527 U.S. at 564.
Second, and most damaging to plaintiff's case, this claim is in considerable tension with his retaliation claim. There is a lengthy record of Wheeler contesting his unsatisfactory job performance evaluations, see. e.g., Ogintz Decl., Exhs. 4-8, in which he notes that in his opinion his performance was more than satisfactory. It cannot be the case that plaintiff was both performing his job at a high level and simultaneously suffering a disability that substantially limited his ability to work.
We note that Wheeler worked for nearly a full year in the Hearings Unit and Personal Injury Division after sustaining the bungee cord injury butbefore alerting his supervisors to the alleged disability. Nothing in the voluminous personnel record (replete with plaintiff's various protestations) suggests that either before or during that time that plaintiff experienced substantial difficulties performing any duties at the office. The record fails to reveal that plaintiff's treatment, medication, or job capabilities changed in any meaningful way.
Third, the Court must take into consideration plaintiff's efforts to mitigate his vision problems during this time period. Sutton, 527 U.S. 471, 482 (1999) (severely myopic job applicant). Wheeler worked for nearly one and one-half years before undergoing the operation to improve his sight. Before the operation, his left eye was "limited to counting fingers at 3 ft." but could "achieve some rehabilitation," and his right eye had, "best corrected visual acuity [of] 20/60, achieved with a contact lense" that "cannot be improved with either surgical or medical means." Plaintiff's Opposition, Exh. G (June 8, 1992 Letter from Dr. Deborah Boston). After his surgery in 1993, Wheeler's vision improved to "20/40 in the right eye and 20/50 in the left eye" when he wore his corrective lenses. Plaintiff's Opposition, Exh. G (Sept. 5, 1996 Letter from Dr. Richard S. Koplin). This confirms the findings of Dr. Scott Brodie, who examined plaintiff at the behest of the defendants pursuant to N.Y. Civ. Serv. L. § 72 (McKinney 2000), and who found that plaintiff "functioned satisfactorily in his capacity as a Claim Examiner for many years, despite the moderate limitation of his vision." Tiliakos Decl., Exh. V.
Moreover, whatever evidence of limitation on his major life activities Wheeler has put forth, it certainly does not rise to the level of beingsubstantial. See Colwell v. Suffolk Cty. Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998); see Aquinas v. Federal Express Corp., 940 F. Supp. 73, 77 (S.D.N.Y. 1996) (citation omitted) (impairment must be "significantly more severe than those encountered by ordinary people in everyday life"). In the instant action, both Dr. Koplin and Dr. Brodie opined that plaintiff's vision problems, although negatively affecting his vision, did not substantially impair his ability to see or perform his job. Cf.Sweet, 1996 WL 204471, at *6 (employee with eye condition that "cannot read or work on the computer for extended periods without a break, . . . is no different from the millions of other Americans whose eyes, for one reason or another, tire, tear, or blur after staring at a book or a computer screen for hours on end.).
Plaintiff's bungee cord injury also bears no legal significance under the ADA. Dr. Brodie concluded that although this incident further injured the left eye, "[i]t is unlikely that Mr. Wheeler ever depended on his left eye for any demanding visual tasks, even prior to the injury." Tiliakos Decl., Exh. V. Since monocularity is not a disability per se, Albertson's, 527 U.S. at 566 (determination of disability must be made on a "case-by-case basis"), the court must look to the record for additional support for plaintiff's claim. However, the record, as discussed supra, is devoid of such evidence.
In sum, because no competent evidence supports the conclusion that Wheeler suffered a substantial limitation to a major life activity, no reasonable jury could find plaintiff to be "disabled" within the meaning of the statute. Accordingly, summary judgment in favor of the defendant is granted on this claim. b. Failure to Accommodate Plaintiff's Alleged Disability
The record reveals that plaintiff also suffered from debilitating conditions on five occasions during his employment: (1) on June 16, 1992 he was diagnosed with tendinitis of his left heel, Plaintiff's Opposition, Exh. G. (June 16, 1992 Prescription from Dr. Robert M. Romanoff); (2) on February 28, 1997, plaintiff injured his right hand and left side of his leg, Plaintiff's Opposition, Exh. G (February 28, 1997 Worker's Compensation Board Employer's Report of Injury/Illness); (3) on March 3, 1997, plaintiff was diagnosed with bilateral tendinitis of his wrist, Plaintiff's Opposition, Exh. G (March 3, 1997 New York Medical Group); (4) on October 12, 1998, plaintiff underwent an operation for a herniated disc (C5-C6) with cord compression and quadri paresis, Plaintiff's Opposition, Exh. G (October 12, 1998 Beth Israel Medical Center Report of Operation); and (5) on June 4, 1999, plaintiff underwent an operation for a cervical myelopathy from cervical spondylosis, Plaintiff's Opposition, Exh. G (June 4, 1999 Beth Israel Medical Center Operative Report). The record reveals that these injuries, while serious and painful, were only temporary conditions. Temporary injuries, such as these, are not considered "disabilities" within the meaning of the statute. See 29 C.F.R. pt.1630 App. § 1630.2(j) ¶ 4 (2000) ("temporary, non-chronic impairments of short duration, with little of no long term or permanent impact, are usually not disabilities."); Graaf v. North Shore Univ. Hosp., 1 F. Supp.2d 318, 321-22 (S.D.N.Y. 1998). Therefore, plaintiff cannot base a disability discrimination claim on these injuries.
Even assuming, arguendo, that plaintiff was disabled and thus qualified for protection under the ADA, there is no showing in the record that defendants failed to accommodate his alleged disability. For a prima facie "failure to accommodate" ADA claim, an employee must also show (1) that defendants had notice of his disability, (2) that with a reasonable accommodation, plaintiff could perform the essential functions of his job, and (3) that defendants refused to make such accommodation. See Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997), cert.denied, 522 U.S. 1112 (1998);see also Wernick, 91 F.3d at 383.
On the first two occasions that plaintiff informed defendants that he had an eye injury or was under a doctor's care, however, plaintiff requested no accommodation, nor did he claim that he was unable to perform all or part of his duties because of his eye injury. Aaronson Decl., Exhs. 2, 3. Thus, no reasonable jury could find that defendants failed to accommodate him.
The sole occasion on which Wheeler sought to modify his working conditions occurred after defendant Aaronson notified him that his June 2, 1992 request for a transfer was denied. Plaintiff then had Dr. Deborah Boston send defendants a letter detailing his eye injury and "moderate level of visual functioning". Aaronson Decl., Exh.5. Although Dr. Boston suggested the Hearing Unit as a "more appropriate" option, defendants — who are in a better position to know how much computer work each department demanded — asserted that Dr. Boston misunderstood the amount of computer work required in the Hearing Unit. Defendants' Local Rule 56.1 Statement, at 6, ¶ 26. Computer usage in the Hearing Unit was "significant", thus a transfer to the Hearing Unit would not have met plaintiff's stated needs. Defendants' Local Rule 56.1 Statement, at 6, ¶ 26.
Nonetheless, defendants did accommodate Wheeler by modifying his duties — he was no longer assigned "field work" and instead remained in the office — even though "the ADA does not entitle an individual to the job of his choice". Sweet, 1996 WL 204471, at *4; see also Defendants' Local Rule 56.1 Statement, at 6, ¶ 26; Aaronson Decl., at 3-4, ¶¶ 17, 19. However, plaintiff never informed defendants that this accommodation did not meet his needs, but instead repeatedly requested transfers or promotions that were either inappropriate or unavailable. Accordingly, even if plaintiff was presumed to be disabled, defendants' motion for summary judgment on this claim would still be granted.
D. Failure to Promote Claim
A prima facie failure to promote claim may be established if plaintiff can show that "[he] `a member of a protected class'; 2) [his] job performance was satisfactory; 3) [[he] applied for and was denied promotion to a position for which [he] was qualified; and 4) the position `remained open and the employer continued to seek applicants.'" Cruz, 202 F.3d at 565 (quoting Brown v. Coach Stores. Inc., 163 F.3d 706, 709 (2d Cir. 1998) (citations omitted)). Defendants concede that plaintiff is a member of a protected class, but they argue that plaintiff fails to show that he actually applied for a promotion and that he was qualified for the promotion. Defendants' Memorandum of Law, at 5. We concur.
The record reveals many instances in which plaintiff requests to be promoted from his position as Claims Examiner. These requests, which are exclusively in the form of letters or memoranda to the Comptroller or various department heads, are generalized inquiries relating to plaintiff's desire for higher pay and title. For instance, in his May 21, 1990 letter to Comptroller Holtzman plaintiff states that "would like to meet with you to discuss a possible transfer to another Division with an opportunity for increased responsibility and compensation." Tiliakos Decl., at J. Similarly, plaintiff's May 2, 1992 memorandum to defendant Aaronson asks that plaintiff "be given the title [Associate Level Two] per Civil Service ruling". Aaronson Decl., Exh. 3. Similar requests were made on June 13, 1991 (Aaronson Decl., Exh. 8), February 29, 1992 (Tiliakos Decl., Exh. M), June 10, 1992 (Id., Exh. Q), and on February 23, 1994 (Id., Exh. AA).
Such generalized requests, however, are insufficient to prove a failure to promote claim. See Brown, 163 F.3d at 710. A plaintiff must allege that he applied for specific positions and was rejected therefrom "rather than merely asserting that on several occasion[s] . . . he generally requested promotion." Brown, 163 F.3d at 710 (general request for promotion during annual evaluation); see Ralkin v. New York City Transit Auth., 62 F. Supp. 2 d 989, 993 (E.D.N.Y. 1999) (plaintiff was not eligible for and sought no promotion). Plaintiff fails to allege that he applied for any specific position. Rather the evidence shows that plaintiff merely sought a promotion to the next general grade level of jobs, Associate Claim Examiner Level II. Cf. Maura v. Southern New England Telecomm., Inc., 208 F.3d 384 (2d Cir. 2000) (per curiam).
Defendants are bound by strict procedures for promotions. See N.Y. Civ. Serv. §§ 52, 61 (McKinney 2000); see generally N.Y. Const. art V, § 6 ("promotions in the civil service of the State and . . . cities . . . shall be made according to merit and fitness to be ascertained by examination which . . . shall be competitive."); N.Y. Civ. Serv. L. §§ 50-54 (McKinney 2000). For example, in accordance with state law, a civil service list (No. 7807) was established for the position of Associate Claim Examiner Level II on July 3, 1990 and remained in existence until July 5, 1994. See Defendants' Local Rule 56.1 Statement, at 3, ¶¶ 11-12. Plaintiff was never placed on this civil service list, indicating that he either did not take the civil service examination or took it but did not pass it. See Defendants' Local Rule 56.1 Statement, at 3, ¶ 13. Thus, he could not have been promoted, had he even specifically requested it. This case therefore differs markedly from Maura, in which the plaintiff not only expressed an interest in a promotion to a "particular class of positions", but also was "unaware of specific available positions because the employer never posted them." Maura, 208 F.3d at 387. Defendants' motion as to this claim is granted.
E. Retaliation Claim
In order to establish a prima facie showing of retaliation, plaintiff must show "[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." Van Zant, 80 F.3d at 714 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995)) see Cruz, 202 F.3d at 566;Wannamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir 1997). A claim for retaliation is subject to the McDonnell-Douglas burden shifting analysis. Wannamaker, 108 F.3d at 462.
However, because plaintiff fails to satisfy the elements of a prima facie retaliation claim, analysis beyond that point is unnecessary. Specifically, plaintiff fails to establish that he engaged in a protected activity. Plaintiff did file an out-of-title claim in 1988, which he alleges prompted defendants to retaliate against him beginning in 1990.See Plaintiff's Reply to Summary Judgment, at 3; Tiliakos Decl., Exh. Q ("I know the reason for this action of retaliation is due to an employee out of title grievance concerning out of title work in the Hearing Unit"). This out-of-title claim was resolved by settlement on July 14, 1994. It does not appear from the record, however, that this claim included any charge of discrimination. Instead, plaintiff claimed that he his duties in fact constituted a job of a higher grade, for which he was not paid. Tiliakos Decl., Exhs. A, N. Thus, plaintiff's filing of this claim which makes no reference to discrimination does not give rise to a claim of retaliation. See Castro v. New York City Bd. of Educ., No. 96 Civ. 6314 (MBM), 1998 WL 108004, at *8 (S.D.N.Y. Mar. 12, 1998) (citing Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 n. 4 (3d Cir. 1997), cert. denied, 523 U.S. 1074 (1998).
The plaintiff first alleged retaliation in response to a "recently filed EEO complain[t]" on May 27, 1992. See Aaronson Decl., Exh. 2. However, there is no indication in the record that an EEO charge was actually filed in 1992. See Defendants' Local Rule 56.1 Statement, at 4, ¶ 19 n. 3 ("[t]he Comptroller's Office has no record of the plaintiff filing an EEO complaint. In fact, his EEOC charge does not allege that he ever filed such a formal complaint."). There is no record of any EEOC charge of discrimination prior to the August 19, 1992 complaint. See Complaint, Exh. B.
However, Wheeler's August 19, 1992 charge to the EEOC did include a claim of retaliation in a discrimination context. Plaintiff alleged that in "May, 1992 I was involuntarily transferred to the Personal Injury Division as a result of my having complained about my denial of promotion citing that this was discriminatory based on race and age." Complaint, Exh. B. In his Supporting Affidavit to his charge plaintiff writes that "[a]s a result of having complained about not being promoted and mentioning that this was discriminatory because of my race and age, I was involuntarily transferred for field work beginning May 20, 1992". Complaint, Exh. B. However, as discussed supra., plaintiff complains about being denied promotion without ever formally applying for a promotion. His requests for transfers repeatedand voluntary, and the one time he was transferred, he was dissatisfied and complained. Based upon the record evidence presented, no reasonable juror could conclude that defendants retaliated against plaintiff because of protected activity.See Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999); Hollander v. American Cyanimid Co., 895 F.3d 80, 86 (2d Cir. 1990); Lynk v. Henderson, No. 98 Civ. 2086 (MGC), 2000 WL 178859, at *5 (Feb. 15, 2000).
F. Equal Pay Act (EPA) Claim
The Equal Pay Act entitles employees of both sexes to equal pay for equal work. See 29 U.S.C. § 206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974); 29 C.F.R. § 1620.13(a) (2000). Thus, in order to state an EPA claim, plaintiff must show that although his job was "substantially equal" to that of female co-workers, he received less pay. 29 C.F.R. § 1620.13(a) (2000); 29 C.F.R. § 1620.14(a) (2000) ("`equal' does not mean `identical'");Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993), cert. denied, 511 U.S. 1052 (1994); see Tomka, 66 F.3d at 1310.
There is absolutely no evidence in this record to show that female co-workers performing substantially the same duties as plaintiff were paid any more than he was. Thus, plaintiff has not sustained his burden of proof and defendants' motion for summary judgment is granted as to this claim.
G. Liability of Individual Defendants
Plaintiff's claims against defendants Holtzman, Aaronson, Rubin and Ogintz cannot proceed under Title VII, ADEA, ADA, or EPA because "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Tomka, 66 F.3d at 1313; see Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 689 (2d Cir. 1998).
CONCLUSION
For the above reasons, defendants' motion for summary judgment is granted in its entirety, and plaintiff's complaint is dismissed. The Clerk of the Court is respectfully requested to close the case.