that she had once omitted a page number, then perhaps a reasonable fact-finder could infer from such minor complaints that a discriminatory motive underlay the decision to fire her. Plaintiff's typing errors, however, were both more serious and more frequent. Id.; Duprey Dep. Ex. 18. Many of them appear to be errors that a competent typist would have avoided and that a decent proofreader would have caught. Id. If these errors were trivial, they were only trivial relative to other performance deficiencies that Rogers noted during plaintiff's tenure, many of which the Court summarized supra. Plaintiff's attempt to cast her superiors' well-documented criticisms of her work as hypercritical is insufficient to raise an inference that Prudential terminated her for a discriminatory reason.
Plaintiff also points to her non-receipt of certain office furniture as evidence supporting an inference of discrimination. Any inference of discrimination that Prudential's alleged failure to provide such furniture might raise is undercut by evidence that Rogers made substantial efforts to accommodate her handicap. For example, in January 1993, when Rogers and plaintiff traveled on business to New Jersey and plaintiff discovered that her wheelchair would not fit through the bathroom door in her hotel room, Rogers arranged for her to stay in a different room and to receive a free room service dinner in order to compensate for the inconvenience. Duprey Dep. 52-53, 59. Also during this trip, Rogers helped plaintiff get and in and out of the car, carried her wheelchair for her, and put it in the trunk. Id. at 58. In August of 1993, Rogers helped plaintiff move supplies from upper to lower file cabinets in her office. Duprey Dep. 36-37. Throughout her employment, whenever plaintiff asked Rogers for assistance in retrieving files from inaccessible cabinets, he would "always" help her. Duprey Dep. 38-39. Plaintiff has failed to explain how evidence of Rogers' seemingly tireless efforts to accommodate her disability is consistent with the charge that he, as a representative of Prudential, discriminated against her on the basis of her disability. The evidence belies plaintiff's claim that Rogers' failure to follow through on his offer to supply plaintiff with a special desk, which she never requested, evinces a discriminatory animus. Duprey Dep. 22, 127-28.
Neither does the wet wheels incident reveal that defendant terminated plaintiff under circumstances giving rise to an inference of discrimination. The parties agree that in January of 1993, plaintiff's wheels tracked water from the street onto Prudential's carpet and that Rogers told her to dry her wheels. Duprey Dep. 54, 56; Rogers Dep. 75-77. Plaintiff does not dispute Rogers' claim that the carpet had just been replaced because of excess moisture and that he offered to help her dry off her wheels. Rogers Dep. 75, 77. The Court is unable to see how a reasonable fact-finder might conclude from this incident that Prudential terminated plaintiff under circumstances giving rise to an inference of discrimination.
The Court reaches the same conclusion with respect to the photo incident. Plaintiff claims that when a few Prudential employees came to her department to request her attendance for a group photograph, Rogers would not let her go because "she is in a wheelchair, you are doing it out the back door and she can't get down that step." Duprey Dep. 51-52. When plaintiff countered that she could take an alternative, level route to the site of the photograph, Rogers allegedly refused, stating that their inclusion in the photograph was unimportant because members of a different department were to be its subjects. Id. at 52. Rogers testified that he does not recall this incident. Rogers Dep. 74-75. There is no evidence that Rogers himself appeared in the photograph, organized it, or permitted other employees to participate. Although plaintiff is quick to characterize Rogers' alleged actions as evidence of his discriminatory animus, the incident appears instead to reflect his concern for plaintiff's safety and at worst, his unwillingness to let her take time away from her job in order to participate in another department's event.
Even if some of the events plaintiff described gave rise to an inference of discrimination, a reasonable finder of fact could find that inference negated. Plaintiff fails to explain why Rogers or Prudential would have hired her in the first place and retained her for thirteen months despite her apparent performance problems if they considered disabled people to be inferior workers. See Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209, 215 (4th Cir. 1994) ("An employer who intends to discriminate against disabled individuals or holds unfounded assumptions that such persons are not good employees would not be apt to employ disabled persons in the first place."); see also Suttell v. Manufacturers Hanover Trust Co., 793 F. Supp. 70, 74 (S.D.N.Y. 1992) (stating as reason for plaintiff's failure to establish prima facie of age discrimination that "Suttell was hired by the Bank at the age of fifty-six, a fact which undercuts any inference of age discrimination.").
Even more tellingly, Prudential hired a disabled woman to replace plaintiff. Rogers Aff. P 17. Ms. Fish, the new Human Resources Technician, "is slightly paralyzed on the left side of her body and has limited use of her left hand, left wrist, and left leg. [She] types with one hand." Id. Nevertheless, "[her] work performance has been excellent, and she was converted to full-time status effective July 31, 1991." Id. Plaintiff argues that Prudential hired Ms. Fish only after learning of plaintiff's lawsuit, in an attempt to mask defendants' discriminatory animus towards plaintiff. Ds' Mem. 9. Her evidence is that Ms. Fish started working for Prudential four months after plaintiff's termination and three months after she retained counsel to pursue her discrimination claim. Id. In response to plaintiff's surmise about defendants' motive for hiring Ms. Fish, Rogers states in his supplemental affidavit that he first learned of plaintiff's intention to sue Prudential when he received a copy of her E.E.O.C. charge, on or about September 1994, three months after he hired Ms. Fish. Rogers Supp. Aff. P 2. This evidence, which plaintiff contests with only a speculative logical leap, substantially undermines any inference of discrimination that might arise from the circumstances surrounding plaintiff's termination. See Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 106-07 (2d Cir. 1989) (stating that among reasons for female plaintiff's failure to raise inference of gender discrimination was fact that after plaintiff's termination, defendant hired women to assume her duties).
Plaintiff has failed to raise a genuine issue of material fact with respect to the contested elements of her prima facie case of discrimination. Even if she had carried this de minimis burden, however, the application of the rest of the McDonnell Douglas test would leave the Court inclined to grant defendants' motion for summary judgment.
2. Legitimate Nondiscriminatory Reason
Prudential has satisfied its burden to produce "admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257. Failure to perform her job duties to the satisfaction of her supervisors, defendants' stated and well-documented reason for terminating plaintiff, is a legitimate, nondiscriminatory reason for discharging her. Harker v. Utica College of Syracuse Univ., 885 F. Supp. 378, 386 (N.D.N.Y. 1995); Charrette v. S.M. Flickinger Co., 806 F. Supp. 1045, 1060 (N.D.N.Y. 1992).
On summary judgment, a plaintiff whose claim survives to the final stage of the McDonnell Douglas analysis must raise a genuine issue of material fact as to whether the defendant's articulated reasons for taking adverse employment action against her were false and as to whether it is "'more likely than not [her disability] was the real reason for the discharge.'" Viola v. Philips Medical Sys. of North America, 42 F.3d 712, 717 (2d Cir. 1994) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994). The plaintiff's burden is more difficult if her employer substantiates with a "sound and factually supported basis" its neutral reason for terminating her. Charrette, 806 F. Supp. at 1060 (citations omitted).
Plaintiff's efforts to establish the falsity of plaintiff's articulated reason for terminating her and that a discriminatory animus motivated Prudential to do so fall into two categories: plaintiff's disagreement with Rogers' assessments of her work and sheer speculation. Ds' Mem. 10-11. As to the first category, even if defendants fired plaintiff for a bad reason, that does not constitute evidence that they fired her for a discriminatory reason. Cianfrano v. Babbitt, 851 F. Supp. 41, 48 (N.D.N.Y. 1994) (stating that an employer's stated reason may be "'a good reason, a bad reason, a reason based on erroneous facts, or . . . no reason at all, as long as its action is not for discriminatory reasons.'") (quoting Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187, reh'g denied en banc, 747 F.2d 710 (11th Cir. 1984)); Dister, 859 F.2d at 1116 ("Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons.").
As to the second category, plaintiff states that she cannot "determine conclusively [Rogers'] motivation for continually attacking my work performance, and ultimately recommending my termination," Duprey Aff. P 13, Duprey Dep. 85, 87, that "Mr. Rogers appeared to become very easily annoyed with certain aspects of my disability, and certain accommodations that were made for me," Duprey Aff. P 13, and that " I genuinely feel that I was being discriminated against because of my disability." Id. at P 19; Ds' Mem. 11. None of plaintiff's subjective states raise a genuine issue of material fact as to the reason for her termination.
There are additional reasons for concluding that plaintiff has failed to carry her burden on the third McDonnell Douglas factor. In her deposition, plaintiff testified that when Rogers supposedly blamed her for another employee's mistake, he would have blamed her whether or not she had been able to walk. Duprey Dep. 75. Furthermore, plaintiff does not dispute that Frances Hackett and Jennifer Truscott, the Prudential employees who made the ultimate decision to terminate her, based their decision on her poor work performance, rather than on the fact of her disability. Duprey Dep. 45-47; Hacket Aff. P 7; Truscott Aff. P 6. Finally, the Court rejects plaintiff's suggestion that Prudential's filling the vacancy left by her termination with a disabled person constituted pretext. Most importantly, plaintiff has failed to present evidence that Prudential hired Ms. Fish after plaintiff filed her E.E.O.C. charge. See Edwards v. Wallace Comm. College, 49 F.3d 1517, 1521 (11th Cir. 1995) (stating that defendant's hiring minority employee to replace minority plaintiff prior to plaintiff's filing E.E.O.C. complaint cuts against allegation that defendant's hiring decision was pretextual).
Plaintiff has failed to raise any genuine issues with respect to the material facts that would constitute a complete prima facie case that defendants terminated her employment for a discriminatory reason. Even if she has raised genuine issues with respect to these material facts, and thus carried her de minimis burden to show a prima facie case of discrimination, defendants have presented a legitimate, nondiscriminatory reason for discharging her. Plaintiff has failed to raise a genuine issue of material fact as to whether defendants' reason was false or as to whether it is more likely that a discriminatory reason motivated its termination decision.
IT IS HEREBY ORDERED.
That defendants' motion for summary judgment is GRANTED.
That defendants' request for costs and disbursements, including attorneys' fees, is DENIED.
IT IS SO ORDERED.
Dated this 9th day of January, 1996
at Binghamton, New York
Thomas J. McAvoy