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April 9, 1998


JOHN T. CURTIN, United States District Judge.

The opinion of the court was delivered by: CURTIN


CURTIN, District Judge

 Before the court is defendant Buffalo General Hospital's motion for summary judgment (Item 16) and supporting papers (Items 17, 18). Plaintiff Alexandria Glowacki has responded (Items 20, 21, 22), and defendant has replied (Items 26, 27). On December 5, 1997, the parties appeared before the court for oral argument. At oral argument, plaintiff's counsel agreed to drop plaintiff's age discrimination (ADEA) claim.


 Plaintiff Alexandria Glowacki brings this action against her former employer, defendant Buffalo General Hospital, pursuant to the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296, et seq. (Item 1). Plaintiff claims that she was unlawfully terminated based on her disability, Bipolar Affective Disorder (Manic-Depressive Psychosis).

 Plaintiff was employed by Buffalo General Hospital or its predecessor, Deaconess Hospital, in the Patient Accounts Department since March 7, 1965. During her employment, she worked under the supervision of several Patient Accounts managers. Plaintiff claims that she had "no problems with any department head in the Patient Accounts Department until Peter Sorci" assumed the position of Director of Patient Accounts in April, 1991 (Item 21). Defendant notes, however, that plaintiff was counseled on several occasions for poor performance or inability to get along with others (Item 18).

 I. Plaintiff's Performance Problems

 On June 8, 1967, plaintiff received a "Record of Warning" because she was excessively loud in answering her supervisor (Item 21). On May 25, 1977, plaintiff received a "Record of Warning" for being uncooperative and belligerent with several employees (Id.). On January 11, 1979, plaintiff received a "Memo to File" for personal use of hospital supplies and postage at Deaconess Hospital (Id.).

 After Maureen Weir became plaintiff's supervisor in 1988, plaintiff received a "Record of Warning" for refusal to perform her job duty on November 6, 1989 (Id.). On October 4, 1990, plaintiff received a "Record of Warning" for failure to follow job instructions and insubordination after plaintiff had told supervisor Weir to "go chew granola" during discussion of plaintiff's numerous job performance problems (billing errors, etc.) (Item 16, Exh. J). Weir wrote, "if this continues, further disciplinary action up to and including termination will occur." (Id.). On October 11, 1990, Weir informed plaintiff in writing that "I as your manager have met with you on several occasions dating back to 10/89 regarding your job performance and attitude." (Id.).

 In short, prior to Mr. Sorci's becoming department head, plaintiff received several written warnings and two suspensions for arguing with staff and supervisors or for poor job performance (Item 16, Exh. J, K). In addition, since Mr. Sorci became department head in April 1991, plaintiff has received numerous Records of Warning: (1) for disruptive behavior on February 24, 1993; (2) for poor work performance on March 26, 1993; (3) for poor work performance on May 24, 1993; (4) for disruptive behavior on November 15, 1993; and (5) for disruptive behavior on March 29, 1994 (Item 21).

 Due to plaintiff's numerous job performance problems, plaintiff was placed in a lower-grade clerical position in the Patient Accounts Department on June 24, 1994, and her hourly wage was reduced from approximately $ 12.05 per hour to $ 9.62 per hour (Item 21).

 II. Plaintiff's Disability

 In 1985, plaintiff was hospitalized due to a psychiatric condition on two occasions, once for a period of approximately two weeks and the other for a period of about three days (Item 21). Shortly after these hospitalizations, she was diagnosed as suffering from Bipolar Affective Disorder (Manic-Depressive Psychosis) (Id.). Plaintiff maintains in her memorandum of law (Item 21) that Maureen Weir was a co-worker of plaintiff's in 1985 and that Weir was aware of these hospitalizations when she became plaintiff's supervisor in 1988 (Id.).

 However, when plaintiff was asked at her deposition, "Did you ever have any discussion with Ms. Weir regarding your condition?", she answered "Never." (Item 16, Exh. A, at 75). Then she was asked, "Do you know if she [Weir] was aware of it?", plaintiff answered "No." (Id.). Plaintiff then stated that Weir was aware of her condition because Weir "would remind me constantly; remember what happened to you before" and plaintiff stated that this referred to her stay in Community Mental Hospital in 1985 (Id.). In contrast, Weir stated at her deposition that the earliest that she learned of plaintiff's Bipolar Affective Disorder was just days before her deposition when she met with defendant's counsel (Item 16, Exh. B, at 81).

 Based on plaintiff's deposition, defendant maintains that the earliest that defendant hospital knew about plaintiff's disability was sometime in 1993, when plaintiff allegedly told Ellie Foster, the Hospital's Assistant Director of Human Resources (Item 18). In April 1994, plaintiff states that she placed a note from her psychiatrist, Dr. Kim, on Mr. Sorci's desk on April 5, 1994, and a copy was received by Ms. Foster on April 8, 1994 (Item 16, Exh. A, at 75). The note read:

The above named patient [Alexandria Glowacki] is currently under my care and has been treated for Bipolar Affective Disorder.
Although her condition has been stable, she has been going through alot [sic] of stress stemming from her disturbed son's condition.
The agitation she exhibited at work is a result of her psychiatric condition.

 (Item 16, Exh. J). Notably, Mr. Sorci does not recall ever receiving this note from Dr. Kim (Item 16, Exh. C, at 127); Mr. Sorci states that he did not learn of plaintiff's condition until he met with defendant's counsel just weeks before his deposition (Id. at 65); plaintiff admits that she never talked with Mr. Sorci regarding her condition (Item 16, Exh. A, at 75); and Ms. Foster never told Mr. Sorci that plaintiff was diagnosed with Bipolar Affective Disorder (Item 16, Exh. D, at 89).

 Furthermore, defendant maintains that plaintiff testified at her deposition that she did not need any accommodation to perform her job in a reasonable manner (Item 16, Exh. A, at 83-84). Even after her note from Dr. Kim on April 5, 1994, plaintiff never claimed that her condition prevented her from performing her job (Id. at 235).

 III. Events giving rise to plaintiff's termination

 The events giving rise to plaintiff's termination occurred on December 13, 1994. On that morning, plaintiff attended a meeting with representatives from the special education branch of the Buffalo Board of Education regarding her son Joey's future. At that meeting, she was advised for the first time that in the opinion of Joey's counselors, his Attention Deficit Hyperactive Disorder was not going to level out, and therefore he may require psychiatric care for the rest of his life.

 As a result of this information, plaintiff became extremely upset. She returned to work, crying, and had a conversation with co-worker Sandra Dunbar. Ms. Dunbar's son had also been diagnosed with Attention Deficit Hyperactive Disorder sometime earlier and had tragically committed suicide. While talking with Ms. Dunbar, who sat back to back with plaintiff at work, plaintiff hit Ms. Dunbar in the back for no reason at all and knocked her over her file drawer (Item 16, Exh. E, at 13). Ms. Dunbar then asked plaintiff "what in the hell did you do that for?" and plaintiff ...

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