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BURKE v. ROYAL INS. CO.

March 15, 1999

CHARLES BURKE, PLAINTIFF,
v.
ROYAL INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Dearie, District Judge.

MEMORANDUM & ORDER

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 recommendations.

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.

SO ORDERED.

REPORT AND RECOMMENDATION

GOLD, United States Magistrate Judge.

Introduction

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.

Facts

Burke's Disability

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 ΒΆΒΆ 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 ...


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