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April 16, 1996


The opinion of the court was delivered by: LARIMER

 This discrimination case is brought pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq.; the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d); Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq.

 Plaintiff Ann Kotlowski ("Kotlowski") claims that she was laid off from her employment with Eastman Kodak Co. ("Kodak"), and denied other employment opportunities at Kodak, because of her disability (depression), her age, her gender, and in retaliation for complaining about discriminatory treatment. She also alleges that, while employed, she was denied pay and promotions equal to that of comparable males.

 Presently before me is Kodak's motion for summary judgment dismissing all plaintiff's claims. For the reasons set forth below, Kodak's motion is granted.


 Kotlowski was employed at Kodak from 1978 to December 1993, at which time she and a number of other Kodak employees were permanently laid off. Kotlowski was 47 years old when her employment was terminated.

 From 1986 to December 1993 Kotlowski was employed in various clerical positions in the Materials Management Organization ("MMO"). From July 1991 to December 1993 she was an Administrative Services Assistant under the supervision of Bernard Law.

 Kotlowski had a history of chronic absenteeism and tardiness. These problems are documented in performance evaluations beginning in May 1989, and thereafter in September 1989, January 1991, June 1992, January 1992, September 1992, January 1993 and, finally, May 1993. Her performance appraisals are otherwise average to below average.

 Kotlowski also had a history of requesting and receiving leaves of absence due to various personal and medical problems (not depression). At her physician's request, Kodak repeatedly renewed a special parking permit for her because of problems with Kotlowski's knee. And for one month in 1992, Kodak permitted Kotlowski to start her work day at 8:30 rather than 7:30. Despite this accommodation, Kotlowski was tardy on 9 of the 12 days that she worked during that month. She was absent altogether for the rest of the month.

 On May 11, 1993 she was issued an "Awareness Warning" memo by her supervisor, Bernard Law. The Awareness Warning memo notified Kotlowski that failure to improve her continued tardiness could result in further disciplinary action, a "Final Warning", or termination. Kotlowski's receipt of the memo suspended her ability to receive a transfer, a promotion, or a pay increase. It also precluded her from utilizing Kodak's internal placement services, for 6 months.

 Shortly thereafter, Kodak's Medical Department Coordinator received a letter dated May 24, 1993, from Dr. David Gaesser, Ed.D., a counselor whom Kotlowski had seen intermittently since 1990. In the letter, Dr. Gaesser noted that Kotlowski had returned to treatment with him as of that month; that she suffered from "signs of depression;" that "part of her difficulty with depression is her hypersomnia"; and that it would be of benefit to her if her work day could start at 8:00 rather than 7:30. Kodak accommodated this request.

 This May 24th letter was the first written request made by Kotlowski for any accommodation due to her alleged depression. Kodak's policy at all relevant times was to require written requests from physicians before making any medical accommodation. Kotlowski was aware of this policy. Kotlowski was also aware that information provided to the Medical Department was considered confidential and not disclosed to anyone -- including supervisors.

 Roughly two weeks after requesting and obtaining this accommodation, Kotlowski requested a leave of absence. Kodak granted this request. Kotlowski did not return to work for roughly one month, at which time she came back on a part-time basis. In the interim, Kotlowski's immediate work group had been dissolved. Thus, when Kotlowski returned she returned to a different job with a different supervisor. Although she worked only in the afternoon, Kotlowski's chronic lateness persisted.

 Also during the month of August, the MMO group began a "downsizing selection process" in an effort to reduce operating costs. MMO group managers and supervisors conducted a so-called "ranking session" for the purpose of evaluating every "business support" employee, including Kotlowski. At these sessions each employee's job performance was ranked according to the following factors: analysis, effectiveness, execution, innovativeness, technical skill and business skills. According to Carroll Anderson, the Human Resources Representative for the MMO division, there was absolutely no discussion by anyone at the ranking session of any employee's age, sex, or medical condition. Nor was there any discussion of Kotlowski's attendance or tardiness records, or her recently filed EEOC charge. Bernard Law, Kotlowski's immediate supervisor throughout 1991 and 1993, did not take part in this ranking session. Only Regis Rocco, Law's supervisor, took part.

 Kotlowski received the lowest rating of all evaluated employees, based upon her substantive performance only. Accordingly, she was laid off October 4th, effective December 5, 1993.

 Kotlowski filed another NYSDHR complaint on November 8, 1993, alleging that she was laid off in retaliation for her earlier NYSDHR filing.

 Despite the fact that Kotlowski had received an Awareness Warning in May 1993 (which prohibited her from participating in Kodak's internal job search program for six months), she was permitted to and did apply for a number of other positions within Kodak. However, she did not secure any of those jobs.

 This action was commenced on January 19, 1994. Kotlowski asserts that she was laid off because of her disability (depression) in violation of the ADA and the NYHRL. She also alleges that she was laid off because of her age and/or sex, in violation of Title VII, the ADEA, and the NYHRL. She also alleges that she was laid off and then denied other jobs at Kodak in retaliation for filing the NYSDHR complaint. Finally, she asserts that she was denied equal pay, in violation of the EPA.


 A. Summary Judgment Standards:

 Pursuant to Fed.R.Civ.P. 56(c), a moving party is entitled to a judgment as a matter of law if there is "no genuine issue as to any material fact" and where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden is on the moving party to inform the court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, supra, at 586. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) (alteration in original)). However, at the summary judgment stage, when perusing the record to determine whether a rational fact-finder could find for the non-moving party, all reasonable inferences must be drawn in favor of the non-moving party. See Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).

 The general principles underlying a motion for summary judgment apply no less to this action simply because it is an employment discrimination case. It is true that courts exercise caution when considering whether to grant summary judgment in cases where an 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 plaintiff in a discrimination case to survive a motion for summary judgment, he or she must do more than present "conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989 (2d Cir.) cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); he or she must offer "concrete particulars" to substantiate the claim. Id., cited in, Duprey v. Prudential Ins. Co., 910 F. Supp. 879 (N.D.N.Y. 1996).

 B. Summary Judgment Analysis in Discrimination Cases:

 When analyzing a summary judgment motion in a discrimination case, courts apply the three step analytical framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and later refined by Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). See Viola v. Philips Medical Systems, 42 F.3d 712 (2d Cir. 1994)(applying McDonnell Douglas in an ADEA case); Heilweil v. Mt. Sinai Hospital, 32 F.3d 718, 721-22 (2d Cir. 1994)(applying McDonnell Douglas in a Rehabilitation Act case); Duprey, supra, (applying McDonnell Douglas in an ADA case). The three steps are as follows:

first the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection. . ." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

 Burdine, 450 U.S. at 252-53 (quoting McDonnell Douglas, 411 U.S. at 802, 804). On summary judgment the plaintiff is not required to meet the burden of proving its case by a preponderance of the evidence, she need only establish a prima facie case by producing evidence sufficient to support a reasonable inference of discrimination. Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048, 89 L. Ed. 2d 576, 106 S. Ct. 1267 (1986). A defendant can still prevail on summary judgment if it can articulate a legitimate business reason for its action and if plaintiff is unable to produce evidence that defendant's proffered explanation is pretextual.

 C. ADA Claim:

 To establish a prima facie case under the ADA, Kotlowski must show: (1) that she is "disabled" (as defined in the Act); (2) that she was qualified to perform the basic functions of her job; and (3) that she was terminated because of her disability. See Heilweil, supra, at 722; Wernick v. Federal Reserve Bank of New York, 1995 U.S. Dist. LEXIS 14835, 1995 WL 598973 (S.D.N.Y. 1995)("The elements of a prima facie case under the ADA are the same as the first 3 prongs of the Rehabilitation Act" (29 U.S.C. § 794(d)).

 Kotlowski claims that her disability is depression, and that she has been depressed for several years. She claims that this depression has caused her to be tardy in the mornings and has at times prevented her from coming to work at all. Kotlowski further alleges that her tardiness was exacerbated by the effects of an antidepressant medication she was taking at times during the 1990 through 1993 time period. This drug, ...

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