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MUSZAK v. SEARS

August 19, 1999

IWONA M. MUSZAK, PLAINTIFF,
v.
SEARS, ROEBUCK & CO., DEFENDANT.



The opinion of the court was delivered by: Larimer, Chief Judge.

  DECISION AND ORDER

INTRODUCTION

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.

FACTUAL BACKGROUND

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 ¶ 15).

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, 1998.

DISCUSSION

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 accommodation.

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. ...


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