The opinion of the court was delivered by: Larimer, Chief Judge.
In this employment discrimination case, plaintiff Iwona Muszak
("Muszak") claims that defendant Sears, Roebuck & Co. ("Sears")
failed to promote her because of her Polish national origin in
violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq. ("Title VII") (4th Cause of Action) and the
New York Human Rights Law ("HRL") (1st Cause of Action), failed
to provide a reasonable accommodation for her disability in
violation of the Americans with Disabilities Act of
1990,42 U.S.C. § 12101, et seq. ("ADA") (5th Cause of Action) and the
HRL (2nd Cause of Action), and terminated her in retaliation for
requesting an accommodation in violation of Title VII (6th Cause
of Action) and the HRL (3rd Cause of Action). Presently before me
is Sears' motion for summary judgment. For the reasons set forth
below, the motion is granted.
In this employment discrimination action, plaintiff either
alleges or does not dispute the following*fn1:
Sears hired plaintiff on March 21, 1994 to work as a beauty
consultant in the cosmetics department of its store in Greece,
New York. (Sears' Local Rule 56 Statement ¶ 1; Amended Complaint
¶ 10). In September 1995, plaintiff hurt her back while working.
(Amended Complaint ¶ 13). In February 1996, plaintiff aggravated
her back injury in an automobile accident. (Amended Complaint ¶
Plaintiff also alleges that in early 1996, she applied and
interviewed for the position of cosmetic department manager of
Sears' Marketplace Mall location in Henrietta, New York. (Amended
Complaint ¶ 28). Jack Farrell, the manager of Sears' Marketplace
Mall store, interviewed plaintiff on or about March 15, 1996.
(Sears' Local Rule 56 Statement ¶¶ 3-4). Plaintiff's former
manager, Sarah DiSalvo, was offered the position. (Plaintiff's
Dep., pp. 63, 57, 45).
During the summer of 1996, plaintiff was on a three month
disability leave, and she returned to work in September 1996.
(Amended Complaint ¶¶ 16-17). In November 1996, she requested
that the cash register in her department be moved into a position
that was level with her waist and would permit her to face
customers as she used the register. (Sears' Local Rule 56
Statement ¶ 6; Amended Complaint ¶ 18). Plaintiff claimed that
such a position would alleviate strain on her back by reducing
the amount of stretching and turning that was otherwise required
to use the register in its current high position behind her sales
counter. (Sears' Local Rule 56 Statement ¶ 6; Amended Complaint ¶
19). Plaintiff provided Sears personnel with a request, dated
December 5, 1996, from her physician, James P. Reidy, M.D., that
the register be lowered. (Amended Complaint ¶ 21; Sears' Local
Rule 56 Statement ¶ 8). Robert Scalia, the operations manager for
Sears' store in Greece, New York, advised plaintiff to use the
register in the "Circle of Beauty" (which apparently was in close
proximity to the cosmetics department where plaintiff worked).
(Sears' Local Rule 56 Statement ¶ 7). Plaintiff thereupon
submitted a second note, this time from her chiropractor, David
Jividen, which indicated that "work stations" should be
"waist-high" and "work station equipment should face the
customers to prevent continual twisting and turning of the
spine." (Exhibit D to affidavit of T. Gill; Sears' Local Rule 56
Statement ¶ 9). Plaintiff overheard, however, that Sears had
decided not to move the register plaintiff customarily used.
(Amended Complaint ¶ 23). Plaintiff further claims to have
submitted a third note about register location and placement on
January 4 or 5,
1997. (Plaintiff's Local Rule 56 Statement ¶ 3).
On January 5, 1997, plaintiff was working in a stock room when
she was paged to her sales counter by a co-employee, Kathleen
Isgro. (Sears' Local Rule 56 Statement ¶¶ 12-13). Plaintiff told
Isgro not to page her again. (Sears' Local Rule 56 Statement ¶
14). Isgro subsequently claimed that plaintiff yelled at Isgro
and hit her on the arm. (Sears' Local Rule 56 Statement ¶ 13;
Statement of K. Isgro, attached as Exhibit A to affidavit of K.
Isgro). Shortly thereafter, on January 11, 1997, Plaintiff's
superior, Carol Kalmbacher, informed plaintiff that she had been
terminated for having assaulted Isgro. (Amended Complaint ¶ 27;
Sears' Local Rule 56 Statement ¶ 2).
Muszak claims to have filed an administrative charge with the
EEOC on or about April 14, 1997, and that a Right to Sue letter
was issued on or about December 10, 1997. This action was filed
on June 5, 1997, apparently before any right to sue letter had
been issued, and an amended complaint was filed on February 6,
Sears now moves, under FED.R.CIV.P. 56, for summary judgment.
Sears asserts that Muszak's complaint should be dismissed in its
entirety because there is no evidence whatsoever of national
origin discrimination as prohibited by Title VII or the HRL, and
that Muszak cannot show even a prima facie case of disability
discrimination under the ADA. In particular, Sears argues (1)
plaintiff failed to show that her national origin was a
motivating factor in the decision not to promote her; (2) there
is no evidence that plaintiff's alleged disability or request for
an accommodation played any role in her termination; and (3)
Sears did not fail to provide plaintiff with a reasonable
On a motion for summary judgment, "a court's responsibility is
to assess whether there are any factual issues to be tried."
Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d
Cir. 1991), citing, Knight v. United States Fire Ins. Co.,
804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107
S.Ct. 1570, 94 L.Ed.2d 762 (1987). Summary judgment will be
granted if the record demonstrates that "there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c);
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.
1994). A genuine issue of material fact exists only if the
record, taken as a whole, could lead a reasonable trier of fact
to find in favor of the non-movant. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986).
The burden of demonstrating the absence of any genuine issue of
material fact rests on the moving party, Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986), and all ambiguities and inferences that may be reasonably
drawn from the facts must be viewed in the light most favorable
to the non-moving party. Coach Leatherware Co. v. AnnTaylor,
Inc., 933 F.2d at 167. To defeat summary judgment, the
non-moving party must go beyond the pleadings and "must do more
than simply show that there is some metaphysical doubt as to the
material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.
Rather, it "must come forward with `specific facts showing that
there is a genuine issue for trial.'" Id. at 587, 106 S.Ct.
1348, quoting FED.R.CIV.P. 56(e) (alteration in original). 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. ...