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CLARK v. NEW YORK STATE ELEC. & GAS CORP.
October 25, 1999
BARBARA G. CLARK, PLAINTIFF,
NEW YORK STATE ELECTRIC & GAS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
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.
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.
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
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. ¶
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.
Plaintiff commenced this action on January 30, 1998. The
parties have completed discovery. Presently before the Court is