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DUPREY v. PRUDENTIAL INS. CO. OF AMERICA

January 9, 1996

ANN S. DUPREY, Plaintiff,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA and ROBERT ROGERS, Defendants.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM, DECISION, AND ORDER

 Plaintiff Ann S. Duprey filed suit against her employer, Prudential Insurance Company of America ("Prudential"), and its Associate Manager and Personnel Consultant, Robert Rogers, for alleged violations of the Americans with Disabilities Act ("ADA"), seeking injunctive relief, backpay, compensatory damages, reinstatement, and costs, inter alia. Defendants filed a motion for summary judgment, seeking dismissal of plaintiff's complaint and an award of costs and disbursements, including attorneys' fees.

 I. Background

 1. Facts and Allegations

 Plaintiff has been completely paralyzed below the waist and partially paralyzed in her left arm since the age of twelve. In December, 1992, defendant Rogers interviewed and hired plaintiff for a part-time position at Prudential's Latham, New York office. She commenced work on January 4, 1993, as a Human Resources Technician. Her job responsibilities included typing letters, word processing, database entry, filing, answering telephones and taking messages, scheduling job interviews, providing employees and applicants with appropriate documents, preparing employee orientation materials, ordering supplies, processing information regarding new employees, and providing clerical support for resignations, terminations, and leaves of absence. Rogers Dep. 13-14; Duprey Dep. Ex. 3; Duprey Dep. 27-32. Plaintiff reported directly to defendant Robert Rogers, who was also plaintiff's only co-worker in the Human Resources department.

 Prior to April, 1993, defendant Rogers discussed with plaintiff, on an informal basis, his concerns about her job performance. According to defendant Rogers, these discussions involved plaintiff's typographical errors, misfiling and incorrect distribution of documents, sending job applicants to the wrong locations for interviews, and tendency to socialize at her desk. Duprey Dep. Ex. 5; Rogers Dep. 22-23. On April 8, 1993, defendant Rogers held a formal counseling session with plaintiff to discuss her purported failure to follow his instructions as to how many part-time employment offers to extend to job applicants. Duprey Dep. Exs. 5, 6; Duprey Dep. 73-74; Rogers Dep. 26-28.

 On April 28, defendant Rogers and plaintiff met again to discuss alleged deficiencies in her work performance. According to a memorandum that defendant Rogers drafted after their meeting, they discussed her omissions from applicant logs, a computer "crash" that defendant Rogers blamed on plaintiff's failure to heed warnings that the computer was running out of memory, and a missing report from the file of a recently terminated employee that it was plaintiff's responsibility to make, distribute, and file. Apparently, defendant Rogers then told plaintiff that unless her job performance improved, she would lose her position. He also wrote that "[she] understands that this is a final warning." Duprey Dep. Ex. 7.

 In May and June, 1993, defendant Rogers met with plaintiff three more times to review her work performance. Duprey Dep. Ex. 9, PP 1-2. According to defendant Rogers' memorandum to his file, they discussed the following performance issues at their June 10 meeting: plaintiff's error in programming the fax machine, her putting an associate on "hold" for several minutes without informing defendant Rogers of the call, her failure to type a form letter, her scheduling error, her failure to prepare application packages correctly, and her failure to provide complete information in a telephone message. Id. at 4-5; Duprey Dep. Ex. 12; Duprey Dep. 95-99. At this meeting, defendant Rogers extended plaintiff's final warning status for three or four months, "during which time she would have to exhibit immediate and sustained improvement in her performance." Duprey Dep. Ex. 9, p. 5; Rogers Aff. P 7.

 Defendant Rogers and plaintiff met again in October, 1993. At this meeting, Rogers noted that plaintiff had made minor improvements in some areas, but extended her final warning status for at least another three months, allegedly because of continued deficiencies in her overall performance. Duprey Dep. Ex. 17; Rogers Aff. P 10. The final warning Rogers drafted after this meeting cites the following examples of plaintiff's alleged shortcomings: making typographical errors, losing time sheets, misfiling forms, leaving confidential employee information in plain view, failing to tell defendant Rogers about a distraught trainee, turning off the answering machine inadvertently, forgetting to type and fax an important document, failing to maintain file organization, sending the wrong forms to another department, and sending employee files to another office without keeping track of which files she had sent. Duprey Dep. Ex. 17, p. 2-6. Rogers allegedly warned plaintiff that "her employment could be terminated at any time while she was on Final Warning status if she did not show immediate and sustained improvement in her performance." Rogers Aff. P 10.

 Defendants contend that during the extended final warning period, plaintiff continued to make "thoughtless and intolerable errors" and that her job performance was "simply a disaster." Ds' Mem. 10. Defendants list numerous examples of plaintiff's purported errors between November, 1993 and January, 1994. Id. at 10-11. Defendant Rogers recommended to his supervisor that Prudential terminate plaintiff's employment because of her unsatisfactory job performance. Rogers Aff. P 13; Duprey Dep. Ex. 21, p. 3. Prudential fired plaintiff on February 15, 1994. Ds' Mem. 11-12. Defendants claim that the sole reason for plaintiff's termination was her unsatisfactory job performance. Id. at 11-12; Rogers Aff. P 14; Duprey Dep. Ex. 21.

 Plaintiff agrees with some of defendants' assertions regarding her job performance. She admits, for example, that she made "errors" and "mistakes" when she worked for Prudential. Duprey Dep. 66, 83, 86, 96-97, 99, 114, 119, 140, 149-150, 151, 152, 154, 156-60, 162, 167, 170-73; Duprey Dep. Exs. 8, 12, 19. She does contest, however, most of defendant Rogers' descriptions of office mishaps that place the blame on her. Duprey Dep. 66, 84, 85, 148-49; Duprey Exs. Exs. 8, 12, 19.

 To support her claim that prudential terminated her employment because of her handicap, rather than because of her inadequate job performance, plaintiff describes four allegedly discriminatory incidents. First, she claims that despite her employer's promise, she never received certain office equipment that would have facilitated her performance of her job duties. Duprey aff. P 15. Second, plaintiff claims that defendant Rogers scolded her for coming into the office with wet wheels during winter months. Id. at P 18. Third, she alleges that she was excluded from an employee photograph after defendant Rogers mistakenly told her that she could not appear in it because it was being taken in an inaccessible area. Id. at P 17. Fourth, she asserts that although defendant Rogers always responded to her requests for assistance in retrieving files from the file cabinet, he "might have" asked her "what's taking you so long" when she had difficulty retrieving a file, but she cannot recall this actually happening. Duprey Dep. 38-39.

 2. Legal Standards

 a. Summary Judgment

 Under Fed. R. Civ. Pro. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).

 Courts exercise special caution when considering whether to grant summary judgment in employment discrimination cases when the employer's intent is at issue. See. e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). However, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994). For a discrimination plaintiff to survive a motion for summary judgment, she must do more than present "conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); she must offer "concrete particulars" to substantiate her claim. Id. The Court has examined plaintiff's complaint in light of the preceding considerations.

 b. Discrimination Claims

 When analyzing discrimination claims under the ADA, courts apply the same three-part test, announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and its progeny, that they apply to most other kinds of statutory discrimination claims. See, e.g., Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157-58 (3d Cir. 1995); Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721-22 (2d Cir. 1994) (applying the McDonnell Douglas standard to a ...


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