The opinion of the court was delivered by: Dearie, District Judge.
In the attached Report and Recommendation dated February 2,
1999, Magistrate Judge Steven M. Gold recommends that defendant's
motion for summary judgment be granted and plaintiff's motion to
amend the complaint be denied. Objections to the Report and
Recommendation were due on February 18, 1999. No objections have
been received by this Court. The Court adopts the Magistrate's
In adopting the Report and Recommendation, this Court need not
conclude that Mr. Burke is disabled under the Americans With
Disabilities Act. The Court instead assumes that Mr. Burke is
disabled and concurs in concluding that plaintiff has simply
failed to raise a genuine issue of material fact on the question
of pretext. Further, the Court declines to exercise supplemental
jurisdiction over the state law claims.
The Clerk of the Court is hereby directed to close the case.
REPORT AND RECOMMENDATION
GOLD, United States Magistrate Judge.
Charles Burke, plaintiff pro se, brings this action against
his former employer for disability discrimination pursuant to the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et
seq., and the New York State Human Rights Law, N.Y.Exec. Law §
296, for breach of contract, for intentional infliction of
emotional distress, and for defamation. On July 29, 1998,
plaintiff moved to amend his complaint to add claims for a
violation of the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1001 et seq., and for wrongful
discharge. On December 7, 1998, defendant Royal Insurance Company
("Royal") moved for summary judgment on the original complaint.
By orders dated September 16, 1998 and January 7, 1999, the
Honorable Raymond J. Dearie referred both pending motions to me
for report and recommendation. For the reasons stated below, I
respectfully recommend that defendant's motion for summary
judgment be granted, and that plaintiff's motion to amend the
complaint be denied.
Burke was diagnosed with Type II Diabetes in 1986, for which he
was prescribed oral diabetes medication. Am.Compl. at ¶ 14-15. In
March 1996, Burke's diagnosis changed to Type I diabetes, and he
has been insulin dependent since that time. Id. at ¶ 16-17. On
March 12, 1996, as a result of his diabetes, one of Burke's big
toes was amputated after an infection became gangreneous. Burke
was immediately placed on short term disability. On the day of
the amputation and while still in the hospital, Burke received a
phone call from his supervisor at Royal Insurance Company, Joseph
Koloski. Koloski told Burke that he had received a poor
performance appraisal for 1995, and informed Burke that his
company car would have to be returned while he was out on short
term disability. Pl.'s Mem. of Law at 3.*fn1 Burke claims that
the timing of the Koloski phone call caused him emotional
distress. Am.Compl. at ¶ 22.
Burke returned to work at the Jericho, New York office from
short term disability in August 1996. On the same day that he
returned to work, Royal terminated his employment citing the
decrease in business at the Jericho branch and his poor work
performance. Burke asserts that he
was terminated because of his disability. Id. at ¶ 26.
Burke's Work History at Royal
Defendant denies plaintiff's claim of disability-based
discrimination, and contends that plaintiff was fired for
legitimate, business reasons. More specifically, defendant
asserts that its business was shrinking, and that management
decided that one of the three field auditor positions at its
Jericho office should be eliminated. As mandated by defendant's
employee handbook, plaintiff was selected for dismissal because
his performance evaluations were poorer than those of the two
other field auditors working at the Jericho office.
To assess whether plaintiff has raised a genuine issue of fact
with respect to defendant's proffered legitimate, business reason
for his termination, it is important to review plaintiff's work
history at Royal. Defendant Royal hired Burke as an Assistant
Auditor in July 1969. Defendant's Local Rule 56.1 Statement
("Def.'s Rule 56.1 Stmt.") at ¶ 2.*fn2 Royal's premium auditors
were responsible for reviewing the books and records of Royal's
insureds at or about the time the insured's policies came up for
renewal, to determine whether and to what extent Royal should
adjust the premiums it demanded. Burke Dep. at 32.
From 1969 through 1991, Burke worked in several internal audit
positions with Royal. In 1991, Royal transferred Burke to the
Premium Audit Department in Royal's Manhattan office and give him
the title of Resident Auditor. Def.'s Rule 56.1 Stmt. at ¶ 5.
Burke received an overall rating of "needs improvement" on his
1992 performance appraisal based largely on low productivity for
the year. Id. at ¶ 9. As a result of the poor performance
review, Burke was passed over for promotion.
In 1993, Royal transferred Burke to the Premium Audit
Department in the Jericho, New York office and gave him the title
of Senior Auditor. Despite the change in title from Resident
Auditor to Senior Auditor, Burke considered the transfer a
demotion because he no longer had any supervisory
responsibilities. Id. at ¶¶ 12-13. The position in the Jericho
office required Burke to conduct "field audits" (audits conducted
at a client's offices), as opposed to the "desk audits" (audits
conducted in Royal's ...