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October 25, 1999


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


I. Background

Plaintiff Barbara G. Clark commenced the instant action on January 30, 1998, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), New York State Executive Law §§ 290 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), and the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ("FLSA") against the New York State Electric and Gas Corporation ("NYSEG"), alleging, inter alia, discrimination due to gender and disability, unlawful retaliation, and unlawful docking of pay. Plaintiff seeks monetary damages (compensatory and punitive) and reinstatement to her position (or an award of front-pay) with additional payment for overtime.

Defendant now moves for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint.

A. Facts

Plaintiff began her employment with NYSEG in 1980 as a teller clerk. Between 1980 and 1997 she received a number of promotions and merit based raises, eventually obtaining the position of meter services supervisor in Oneonta, New York, in 1994. Bruce Peer was Plaintiff's supervisor in Oneonta, until November 1996 when Kathryn King became the acting supervisor in Oneonta. Richard Cerchiara supervised Peer and King.

Jean Pearson, Senior Trainer of Meter Services, traveled around New York working with "field personnel" and evaluating "their training, tools, attitudes, procedures, strengths, weaknesses, etc. and made efforts to bring some consistency to the meter groups state wide." Pearson, Aff. ¶ 3. In late 1995 and early 1996 Pearson came to Oneonta to work with the meter groups. At this time, Pearson noted that there were problems in the group supervised by Plaintiff, id. ¶¶ 10-11, and told both Peer and Plaintiff that "there was going to be a mutiny" in Plaintiff's department. Peer Aff. ¶ 13. She also told Plaintiff she should "leave [her] job right now." Clark Dep., Feb. 25, 1999, p. 67. After this, Peer told Plaintiff to meet with Pearson regarding the problems. Id. ¶ 16. Pearson prepared a memo dated March 5, 1996, a copy of which was given to Plaintiff, documenting her appraisal of Plaintiff's department and the problems therein. See Pearson, Aff. Ex. A. Plaintiff believes this memo was written to retaliate for complaints Plaintiff made regarding Pearson's training session. Clark Aff. ¶ 31.

On April 24, 1996, Plaintiff submitted an injury report to Huemec Garcia, Plaintiff's acting supervisor while Peer was away on special assignment, complaining of numbness and pain in both hands and arms. See Clark Aff. ¶ 31. At this point, she had not received any medical care for the condition and had not taken any time off due to her condition. See Clark Dep., Jan. 28, 1999, p. 56.

Between February and July 1996, Plaintiff's supervisors documented a number of complaints regarding Plaintiff's performance and response to criticism. For example Pearson met with Peer after her field evaluations and noted that "[f]or the most part, Barbara was angry and argumentative at this meeting. She appeared not to be listening to my suggestions." Pearson, Aff. ¶ 12. Richard Cerchiara, the Manager of Customer Satisfaction, Assistance and Training, also received complaints about Plaintiff's management of the Oneonta meter department. John DeSarro, a manager in the Oneonta office, complained that Plaintiff was difficult to work with. See Cerchiara, Aff. ¶ 13. In response to a memo from Plaintiff requesting personnel from other divisions, DeSarro sent Cerchiara and Tum Curran, a NYSEG employee, an email, which stated:

  Tom, you and I have spoken regarding the local
  problem with the management of the meter
  [department]. I'll assist any [department] anytime
  they really need it. I don't think this is the case
  and my "support" is only making matters worse in my
  opinion. Please let me know how I can truly help the
  situation without a continuation of the ill feeling
  toward the meter [department] that pervades this

Cerchiara Aff., Ex. B.

In July, Cerchiara received a call from Cindy Allen, Corporate Stores Manager, requesting intervention into a personnel situation between Allen and Plaintiff because Plaintiff refused to release an employee who had been awarded a job in Allen's division. According to Cerchiara, Plaintiff "had failed to post the new vacancy and would be short-handed without this employee." Cerchiara Aff. ¶ 20. In mid July, Cerchiara and Peer decided to temporarily transfer Plaintiff to Binghamton, and told her this temporary reassignment was because (1) the Binghamton office needed help and (2) Plaintiff needed to get away from Oneonta because of "relationship problems there" and "concern about her ability to supervise her group successfully." Cerchiara Aff. ¶ 26; Peer Aff. ¶¶ 22, 25.

NYSEG denied Plaintiff's requests that she be excused from the temporary assignment and the reassignment be postponed for a week as well as requests for overnight accommodation and overtime pay for the commute hours. See Clark Aff. ¶¶ 44-49; Cerchiara Aff. ¶ 23. Plaintiff was given a company car for the commute. See Peer Aff. ¶ 24. Although Plaintiff claims she informed Peer of her health condition prior to her reassignment, Peer states that he was not aware that Plaintiff had any health concerns and had not received any medical documentation regarding health considerations by this time. See Peer Aff. ¶ 23. Plaintiff alleges that her temporary assignment to Binghamton aggravated her injury because it required additional keyboard time, travel time, and additional work hours. Both Peer and Cerchiara deny knowledge of Plaintiff's disability prior to her reassignment. See Peer Aff. ¶ 23; Cerchiara Aff. ¶ 33.

About the time of her temporary reassignment, Plaintiff agreed to undergo a "360~review," which is a "tool used by NYSEG whereby an employee with performance problems selects a number of peers and subordinates to complete a questionnaire about the employee's performance, skills and characteristics." Peer Aff. ¶ 21. The employee's supervisor participates and the feedback is used to prepare an "action plan" for improving performance. See id.

Plaintiff met with Dr. Elting on June 5, 1996 and was instructed to wear braces on both arms and to restrict her keying activity. Plaintiff states that she provided Peer with a copy of this diagnosis*fn1 and informed him of the results of a follow up appointment. See id. ¶¶ 36-38.

While Plaintiff was reassigned, Defendant continued to receive complaints about Plaintiff's performance from her supervisors in Binghamton. See Peer Aff. ¶ 20.

On September 19, 1996 Plaintiff met with her Binghamton Supervisor, Frank Inglese, and informed him that she was having a great deal of pain in her neck and shoulders due to the extra keying and travel involved in the Binghamton assignment. See Cerchiara, Aff. ¶ 27. On September 25, Plaintiff met with Peer and indicated that she was going to raise a gender discrimination claim.*fn2 At this time Peer told Plaintiff that her supervisors were "receiving complaints about her relationships with other supervisors and the manner the department was being run." Cerchiara Aff. Ex. E. Basically, Plaintiff believed her reassignment was in retaliation for filing the April 24, 1996 injury report and that she was being discriminated against in her job because of her gender. Clark Aff. ¶ 51. The latter belief stemmed from the fact that other male supervisors were not temporarily reassigned. See Clark Dep., Feb. 5, 1999, pp. 11-12. Defendant's internal review of Plaintiff's reassignment indicated that it was premature, but not discriminatory. See id., Ex. C.

In November of 1996, prior to her return to Oneonta, Cerchiara and Plaintiff discussed the perceived problems with Plaintiff's performance. At this time, Plaintiff understood, from conversations with both Peer and Cerchiara, that "she was going to have to improve [her] performance in order to stay in [her] job." Clark Dep. Feb. 5, 1999, p. 51-54. When Plaintiff returned to Oneonta she had a new acting supervisor, Kathryn King. On November 8, 1996, Plaintiff met with Peer and Greg Lapham to discuss her 360~review. See Peer Aff. ¶ 28. At this time, Plaintiff offered a note from her Doctor restricting her keying activity to two hours per day and prohibiting overtime. Cerchiara stated that these were "the first medical restrictions I received about Barbara." Cerchiara Aff. ¶ 33.

Once Plaintiff returned to Oneonta, complaints from employees and peers regarding Plaintiff's performance continued. See King Aff. ¶ 16. By mid-December of 1996 it was apparent to King that Plaintiff's "performance problems were serious." King Aff. ¶ 20. Complaints included, but were not limited to, Plaintiff's inability (or unwillingness) to input information into a "Pen" scheduling device, see King Aff. ¶ 32; her unwillingness to schedule account collections as requested, see King Aff. ¶ 27, and her failure to schedule meter readings based on the "ten month no access list." King Aff. ¶ 29. According to Plaintiff, her relationship with King was strained and she received "hostile and derogatory" treatment from King due to her filing of the internal discrimination complaint. See Clark Aff. ¶ 66.

King's February 10, 1997 specific performance appraisal was critical and stated that "Barbara needs to demonstrate improvement in her relationship skills if she is to remain in her present position." King Aff. Ex. C. The appraisal further stated: "[e]ffective immediately I am requesting a daily log be kept detailing what she has accomplished toward her relationship building goals or what she has done to further their development." Id. Plaintiff's first set of logs was two weeks late; thereafter she did not maintain the logs. See King Aff. ¶ 34.

Plaintiff received a General Performance Appraisal on February 26, 1997. See King Aff., Ex. G. This appraisal indicated that Plaintiff "achieved planned results,"*fn3 and the narrative indicated that "Barb's performance as Meter Services Supervisor has declined in the past year . . .". In the review, Peer stated that Plaintiff's performance decline was due to several factors including relationships, credibility, lack of follow up and lack of teamwork. See Peer Aff. ¶ 31.

Plaintiff was told to prepare an "Action Plan" as part of the 360~review conducted earlier in the year. Because Plaintiff failed to submit the Action Plan, King formulated an Action Plan and sent it to Plaintiff in an email on February 27, 1997. This email detailed King's continued dissatisfaction with Plaintiff's performance. See King Aff. Ex. H.

Plaintiff's struggles with tendinitis continued after she returned to Oneonta. Her hours were restricted by her doctor, as was her keying activity. Additionally, Plaintiff was dissatisfied with her treatment compared to the treatment she believed male employees (including her temporary replacement) received. Clark originally worked a split shift with a long break in the middle of the day to accommodate the hour restrictions. Due to Clark's dissatisfaction with this schedule, her work day was eventually shortened. Clark Aff. ¶ 61-69. All of Plaintiff's requests for accommodation were not met, for example, she never received the movable arm for her computer monitor that she requested. Clark Aff. ¶ 70.

In March and April of 1997, King and Cerchiara discussed discharging Plaintiff because her performance was not improving. See King Aff. ¶ 42, Cerchiara Aff. ¶ 47. King submitted a memorandum recommending termination March 27, 1997. This was not a final determination, however, as the termination had to be approved. Ultimately, William McCann, Cerchiara's supervisor, approved the termination, which was finalized on June 10, 1997. See King Aff. ¶ 42; Cerchiara Aff. ¶ 48. Plaintiff went out on disability on April 30, 1997. See King Aff. ¶ 42; Cerchiara Aff. Ex. I. Because NYSEG has a policy of not terminating employee's while they are out on disability her termination was held in abeyance. See King Aff. ¶ 43. Plaintiff was examined by independent physicians in October and November of 1997. Although King was advised by these physicians that Plaintiff could return to work; Plaintiff did not return. See King Aff. ¶ 44. Plaintiff believed she was still out of work on doctor's orders because her workers compensation case was continued not dismissed and she had not received clearance to return to work from her physician. See Clark Aff. ¶ 72; Clark Aff. Ex. D. Because NYSEG no longer considered "disabled," she was terminated on December 10, 1997. Plaintiff's affidavit states that she "believe[s] there are treatments which would help [her] condition" that NYSEG "refused and continues to refuse to authorize," Clark Aff. ¶ 71; however, her deposition testimony unambiguously states that she is "completely disabled from doing any type of work at all," regardless of accommodation; and there is nothing at NYSEG she believes she could have done since April 1997. Clark Dep., Jan. 11, 1999, p. 19; Clark Dep. Mar. 11, 1999, p. 91. Plaintiff has been totally disabled since April 30, 1997.

B. Procedural History

Plaintiff commenced this action on January 30, 1998. The parties have completed discovery. Presently before the Court is Defendant's ...

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