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May 27, 1996


The opinion of the court was delivered by: DEARIE

 DEARIE, District Judge.

 On October 13, 1992, plaintiff Mary Duffy filed this suit against her former employer, State Farm Mutual Automobile Insurance Company ("State Farm"), alleging that she was terminated because of her age and because she filed an age discrimination charge with the New York State Division of Human Rights ("NYSDHR"). State Farm moves for summary judgment on both causes of action.


 State Farm hired plaintiff in December 1988 as a receptionist at its Bulova office in Queens. She was terminated on February 7, 1992. Plaintiff was 59 years old at the time of her termination. Beyond this, the parties' versions of the facts differ substantially. According to plaintiff's version, Duffy was an innovative employee who received regular salary increases and became the target of harassment by one of her supervisors. By contrast, defendant maintains that plaintiff was an incompetent employee for whom it made repeated accommodations despite her poor performance and her bad attitude. Both parties submit affidavits and excerpts of plaintiff's deposition in support of their accounts of Duffy's tenure at State Farm.

 Plaintiff started working as a receptionist in December 1988 and received a salary increase after six months based on a recommendation approved by her supervisor Debra Pouch. See Duffy affidavit, P 20; exhibit A ("Mary is courteous and pleasant to all callers. . . She attempts to distribute calls promptly."). Plaintiff requested to be reassigned from the switchboard because the heavy volume of incoming calls affected her high blood pressure. Duffy Deposition at 223. In July 1989, plaintiff was transferred to the mail room to work as a mail and file clerk, a job that entailed opening and sorting mail and pulling files from filing cabinets. When asked about this reassignment, plaintiff described her supervisors as "very accommodating." Id. at 169. When plaintiff complained that pulling the files caused her lower back pain, her supervisor told her that she no longer had to pull files with the other clerks and that she could spend her time identifying and indexing incoming mail. Id. at 40. Plaintiff described this decision as an "accommodation." Id. In December 1989, plaintiff received another salary increase based on a recommendation signed by Pouch. See Duffy affidavit P 3; exhibit B ("Mary has made a great effort to adjust to her new position in Mail & File.").

 Plaintiff had trouble keeping up with her indexing assignment. Minafo Affidavit, P 3. Therefore, on May 1, 1990, Minafo reassigned plaintiff to work on the "six day hunt list" and "dead storage requests." A backlog developed, and Minafo sent plaintiff a memorandum dated May 17, 1991, warning her that she "must clear all current backlog and remain current." Defendant's Affidavits, Exhibit C. On May 18, 1990, Minafo sent plaintiff another warning memorandum outlining the requirements of the six-day hunt list position. Defendant's Affidavits, Exhibit D. Plaintiff's response to Minafo's criticism was to confront her, claiming that she had never received any instructions. Minafo Affidavit, P 4.

 Plaintiff conceded that "there was a backlog." Duffy Deposition at 236. According to plaintiff, she and Minafo had never gotten along and Minafo had singled her out for harassment. Id. at 249. Describing her conflicts with Minafo, plaintiff stated, "I don't think my age ever entered into it." Id. On November 29, 1990, plaintiff received another salary increase approved by Pouch. See Duffy affidavit, P 4; exhibit C ("Mary has adjusted to her position handling 6 day Hunt List mail and Dead Storage requests. She seems to understand more about the unit than in the past. Her attendance record has improved since her memo of August 1990.").

 In March 1991, State Farm opened an office in Whitestone, Queens and reorganized the personnel assignments at its Bulova office. As part of this restructuring, plaintiff was assigned to oversee priority mail. In the spring of 1991, Audrey Warren became mail room supervisor at the Bulova office, and Kathleen Murray was transferred to the Bulova office as the claims superintendent and Warren's supervisor. According to plaintiff, a "personality conflict" developed between Murray and herself. When Murray made disparaging comments about the mail room at a meeting, plaintiff was the only employee to stand up to Murray and defend the work of the mail room employees. Duffy affidavit at P 7. Plaintiff claims that Murray was annoyed by her comments and therefore initiated a "vendetta" against her. Plaintiff maintains that, on the same day as this confrontation, she was informed without notice that she and Liza Cartegna were to switch assignments, that is Cartegna was to do priority mail and Duffy was to do the hunt list. Id. at P 8. In her deposition, plaintiff conceded that she was not claiming that she was assigned to the hunt list because of her age. Duffy Deposition at 85. Defendant asserts that Cartegna discovered a considerable backlog when she took over the priority mail assignment from Duffy. Murray Affidavit, P 3.

 The hunt list clerk receives any mail for which the mail and file clerks cannot find the claim file. The hunt list clerk files this mail sequentially by claim number and then types a list of the claim numbers in this file. This list, usually one or two pages in length, is then distributed to the claims' representatives who indicate which claim files that they have so that the mail can be given to them for filing. When Cartegna was the hunt list clerk, she was able to complete the hunt list on a daily basis and was able to perform additional tasks in the mail room. Warren affidavit, P 3. Plaintiff states that Cartegna could complete the task on a daily basis because she worked overtime. In addition, plaintiff asserts that the hunt list job became more difficult because the volume of mail increased after the Whitestone office opened. Duffy affidavit, P 16.

 Plaintiff conceded that she had problems completing the hunt list on a daily basis and acknowledged that "a backlog developed." Duffy Deposition at 270. In describing her problems completing the hunt list in a timely manner, plaintiff stated "I never could get it all done, never," "I wasn't doing it successfully," "I was always behind," and "I just couldn't get the thing out fast enough to satisfy anyone." Id. at 73, 286, 77, 523.

 On June 25, 1991, Warren sent plaintiff a memo, advising her that the hunt list needed to be completed daily, stating that she "expected to see an improvement in her work production," and inviting her to ask for help. Defendant's Affidavits, Exhibit G. On July 3, 1991, plaintiff did not complete the hunt list and left the partially completed hunt list locked in her desk. Duffy Deposition at 282. Plaintiff later explained that she locked the list in her desk because she "didn't want it to disappear." Id. On July 9, 1991, Warren sent plaintiff another warning memo, stating that she should not have locked the list in her desk, that she must complete the hunt list daily, and that failure to improve her performance could result in "further disciplinary action not excluding recommendation for termination." Defendant's Affidavits, Exhibit H.

 On July 9, 1991, plaintiff submitted a proposal to her supervisors, recommending that the hunt list be distributed twice a week instead of daily and that it be automated on a computer program called "Listkeeper." Duffy Affidavit, P 17. Murray allegedly rejected plaintiff's proposal and told her to work on it on her own time. Id. at P 17. On July 17, 1991, plaintiff again left for the day without completing the hunt list. Plaintiff stated that she left at 5:00 p.m. that day and that, as far as she knew, other clerks completed the hunt list. Duffy Deposition at 417. On July 24, 1991, plaintiff's supervisors met with her to discuss her proposals. In a memorandum dated July 25, 1991, plaintiff's supervisors agreed that she could distribute the hunt list every other day. Murray Affidavit, Exhibit E.

 Plaintiff requested a meeting with Pouch to discuss the every-other-day distribution schedule, and during this meeting, Pouch used a calendar to explain to plaintiff what "every other day" meant. Duffy Deposition at 299. In late August 1991, plaintiff complained to Jay Kelsey, Pouch's supervisor, about the way she was being treated. According to plaintiff, Kelsey looked at the hunt list and commented that he "couldn't believe it took three hours to type this thing." Id. at 66. On August 9, 1991, Warren sent plaintiff another warning memorandum, informing her of several deviations from the every-other-day schedule and cautioning her that failure to adhere to the new schedule could result in further disciplinary action. By memorandum dated August 20, 1991, plaintiff was placed on probation for sixty days. In this memorandum, Warren stated "you are not making a significant effort to improve your work product" and warned her that, absent a marked improvement in her performance, further disciplinary action would be taken. Defendant's Affidavits, Exhibit J.

 In September 1991, plaintiff's daughter came to the State Farm office with a note from plaintiff's doctor stating that she needed to take at least a month off because of a heart problem. Wirtz affidavit, P 4, exhibit U. Plaintiff used sick leave until October 30, 1991, and State Farm permitted her to remain on unpaid leave until her return on December 31, 1991. Pouch affidavit, P 2. Plaintiff ...

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