that NYSEG discriminated against her because it failed to provide
reasonable accommodations due to her disability, see
42 U.S.C. § 12112(5)(a), or that she was discriminated against because she
was discharged on the basis of her disability. See
42 U.S.C. § 12112(a). The Court will address both.
The ADA provides that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the
disability of such individual in regard to . . . discharge of
employees. . . ." 42 U.S.C. § 12112(a). In order to establish a
prima facie case of discriminatory discharge under the ADA,
Plaintiff must establish that: (1) her employer is subject to the
statute under which the claim is brought; (2) that she is an
individual with a disability within the meaning of the statute,
(3) that, with or without reasonable accommodation, she could
perform the essential functions of the job, and (4) that the
employer had notice of Plaintiff's disability and failed to
provide such accommodation. See Ryan v. Grae & Rybicki P.C.,
135 F.3d 867, 869-870 (2d Cir. 1998); Reeves v. Johnson Controls
World Servs., Inc., 140 F.3d 144 (2d Cir. 1998). The Plaintiff
bears the initial burden of establishing a prima facie case. See
Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir.
1996). In this case, the first prong is undisputed.
With respect to the second prong, however, Defendant argues
that Plaintiff does not have a disability, within the meaning of
the ADA. Defendant further argues that even if Plaintiff was
found to be disabled under the ADA, she is not a "qualified
individual with a disability" because, by her own admission, she
is totally disabled and, thus, cannot perform the essential
functions of the Meter Services Supervisor position, with or
without reasonable accommodation. See Clark Dep., Jan. 11,
1999, p. 19; Clark Dep. Mar. 11, 1999, p. 91.
Assuming, arguendo, that Plaintiff is disabled within the
meaning of the ADA, Plaintiff cannot establish that she is a
"qualified individual with a disability" such that she can bring
a claim for discrimination under the ADA. See
42 U.S.C. § 12112(a); Parker v. Sony Pictures Entertainment, Inc.,
19 F. Supp.2d 141, 147 (S.D.N.Y. 1998). The ADA defines a "qualified
individual with a disability" as "an individual with a disability
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires." 42 U.S.C. § 12111(8); see also
29 C.F.R. § 1630.2(m). The discharge of an individual who is totally
disabled and thus, unable to perform any job, no matter what its
essential function, cannot be discriminatory "even where the
individual is fired because of the disability." Belgrave v. City
of New York, 1999 WL 692034 at * 148 (E.D.N.Y. Aug.31, 1999)
(citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481-82 (9th
Cir. 1996)). Plaintiff claims that she is permanently disabled
and unable to return to work, even with accommodations. Clark
Dep., Jan. 11, 1999, p. 19; Clark Dep. Mar. 11, 1999, p. 91.
Because Plaintiff is totally disabled, and cannot perform her job
with or without reasonable accommodation, she is not a "qualified
individual with a disability" within
the meaning of the ADA and, therefore, cannot succeed on her
claim for discrimination based on the ADA. See Jett v. Longs
Drug Stores Corporation, 166 F.3d 1217 (9th Cir. 1999) (Table);
Pena v. Houston Lighting & Power Co., 154 F.3d 267, 269 (5th
Cir. 1998) ("Because Pena specifically represented that he could
not perform his job with or without reasonable accommodation, he
cannot demonstrate that he is a `qualified individual with a
disability' under the ADA."); Friedman v. Consolidated Edison
Co. of New York, 1999 WL 511962, *10 (S.D.N.Y. July 20, 1999).
Moreover, if Plaintiff had established the elements of a prima
facie case, the burden would shift to the Defendant to articulate
a legitimate non-discriminatory reason for its actions. Defendant
has satisfied this burden by presented well-documented complaints
regarding Plaintiff's performance. The burden thus reverts to the
Plaintiff to establish that discrimination is the more likely
reason for Defendant's adverse employment actions. Plaintiff has
not satisfied this burden because she has not alleged sufficient
facts on which a rational finder of fact could conclude that the
legitimate business reasons for plaintiff's termination-her
performance-were pretextual. Plaintiff's conclusory allegations
are not enough to create a material issue of fact. See Goenaga,
51 F.3d at 18. Thus, Plaintiff has not upheld her burden. See
Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188
(2d Cir. 1992) ("mere knowledge of disability cannot be
sufficient to show pretext") (quoting Christopher v. Adam's Mark
Hotels, 137 F.3d 1069, 1073 (8th Cir.), cert. denied, ___ U.S.
___, 119 S.Ct. 62, 142 L.Ed.2d 49 (1988)); Brower v. Continental
Airlines, 1999 WL 640028 (E.D.N.Y. July 29, 1999); Sutherland
v. New York State Dept. of Law, 1999 WL 314186, *9 (S.D.N.Y. May
19, 1999), recon. denied, 1999 WL 600522 (S.D.N.Y. Aug.10,
1999). Accordingly, Defendant's motion for summary judgment is
granted with respect to Plaintiff's claim of discrimination under
1. Title VII Claim
Title VII provides that it "shall be an unlawful employment
practice for an employer to discriminate against any of his
employees . . . because [such employee] has opposed any practice
made an unlawful practice by this subchapter."
42 U.S.C. § 2000e-3(a). Plaintiff contends that NYSEG violated this provision
by retaliating against her for complaining about and filing
charges concerning the gender discrimination.
The Defendant notes that the EEOC charge did not include any
of retaliation. Def. Mem. of Law at 16. A district court "only
has jurisdiction to hear Title VII claims that either are
included in an EEOC charge or are based on conduct subsequent to
the EEOC charge which is reasonably related to that alleged in
the EEOC charge." Butts v. New York Dep't of Housing
Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)
(internal quotations omitted). This limit on jurisdiction
requires a Title VII plaintiff to exhaust administrative remedies
prior to bringing suit in Federal Court. The requirement both
encourages settlement and provides notice to the party charged
with a violation. See id.
The EEOC complaint "must be sufficiently precise to identify
the aggrieved individual and the agency and to describe generally
the action(s) or practice(s) that form the basis of the
complaint." 29 C.F.R. § 164.106(c). The Plaintiff in this case
filed a charge with the EEOC on March 7, 1997 claiming that she
was subjected to "different working terms and conditions of
employment than a male who has worked as a Meter Supervisor."
Johnson Aff. Ex. B. Notably, the alleged retaliation occurred
prior to time she filed her charge with the EEOC. Plaintiff does
not claim retaliation in this EEOC charge and only mentions the
temporary reassignment with regards to her disability claim,
discussed later in this decision. Because of this, the Court will
not consider Plaintiff's retaliation claim with respect to her
temporary reassignment.*fn11 See Butts, 990 F.2d 1397.
The Court recognizes three exceptions to the exhaustion
requirement, for conduct "reasonably related" to claims filed
with the EEOC. See id., 990 F.2d at 1402. One such exception
includes an allegations of retaliation stemming from the filing
of the EEOC charge itself. Id. Therefore, the Court will
consider Plaintiff's allegation that she was discharged in
retaliation for filing the charge with the EEOC.
The McDonnell Douglas burden shifting scheme set forth above
also applies to retaliation claims. See Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). To establish a
prima facie case of retaliation, an employee must show (1)
participation in a protected activity known to defendant; (2) an
employment action disadvantaging the Plaintiff; and (3) a causal
connection between the protected activity and the adverse
employment action. See id.; Tomka v. Seiler Corp.,
66 F.3d 1295, 1309 (2d Cir. 1995). Either direct evidence of retaliatory
animus or an indirect showing that a "protected activity was
followed closely by discriminatory treatment" can establish the
necessary causal connection. Johnson v. Palma, 931 F.2d 203,
207 (2d Cir. 1991) (citing DeCintio v. Westchester County Med.
Ctr., 821 F.2d 111 (2d Cir.), cert. denied, 484 U.S. 965, 108
S.Ct. 455, 98 L.Ed.2d 395 (1987)).
The third element, however, is disputed. NYSEG argues that
Plaintiff has not shown a causal connection between the protected
activity (filing of the complaints) and her discharge. See Def.
Mem. of Law at 24. Plaintiff, on the other hand, contends that
the timing of her discharge establishes the necessary causal
See Pl. Mem. of Law at 6. Plaintiff filed the EEOC charge on
March 7, 1997 and was actually discharged on December 10, 1997.
However, the discharge was delayed due to NYSEG's policy of not
terminating employees who are out on disability, see King Aff.
¶ 43, and Plaintiff's direct supervisor, King, had compiled a
packet of documentation supporting Plaintiff's termination by
March 27, 1997. See Kimball Aff. Ex. F. Although temporal
proximity between protected activity and adverse action is
circumstantial evidence of a causal connection, timing alone does
not necessarily establish the requirement. See Hollander v.
American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990)
(finding that employee who was terminated three months after age
discrimination complaint filed could not establish causal
connection); Belgrave, 1999 WL 692034, *35. Plaintiff's
implication that the March 27, 1997 memorandum is proof of
retaliation because it was circulated approximately 20 days after
Plaintiff's EEOC charge was filed fails to take into account the
substance of the memorandum itself. The packet of papers compiled
by King supporting Plaintiff's termination, which were attached
to the March 27 memorandum is notably absent from the
record.*fn12 The memorandum, however, which has been provided,
states that the compiled material includes complaints regarding
Plaintiff's performance from January 1, 1996 to March 26, 1997, a
period which extends well before Plaintiff's EEOC charge was
filed. See Kimball Aff., Ex. F. Evidence provided by the
Defendant indicates that this memorandum was not the first
writing to suggest that Plaintiff's performance problems may
warrant her termination. See, e.g., Kimball Aff. Ex. D. Looking
at the March 27 memorandum as a whole undermines Plaintiff's
claims that the performance complaints were manufactured to
explain away an actually discriminatory discharge. Moreover,
Plaintiff's discharge was not contemporaneous to the filing of
the EEOC charge, she was not officially terminated until December
10, 1997, approximately nine months after the EEOC charge was
filed. The March 27 memorandum recommended termination, it was
not a final action. Plaintiff's termination was not approved
until June 10, 1997, more than 3 months after she filed her EEOC
charge and she was not actually terminated until December 10,
1997, almost 9 months after the charge was filed. Because
Plaintiff has not established the necessary causal connection,
she has not established a prima facie case of retaliation. See,
e.g., Rodriguez v. HRA ACS, 1999 WL 568019, *2 (2d Cir. July 30,
1999) ("Even so construed, Rodriguez's retaliation claim is
insufficient because Rodriguez provided nothing prior to or in
response to the summary judgment motion linking his termination
with the EEOC complaint.").
Assuming, arguendo, Plaintiff could establish a prima facie
case, the burden shifts to Defendant to articulate a legitimate
non discriminatory reason for its action. Because NYSEG
articulated specific, legitimate, and non-discriminatory reasons
for Plaintiff's discharge, the burden shifts back to Plaintiff to
show that the proffered reasons are pretextual, and that, more
likely than not, the true reason for her discharge was unlawful
retaliation. See Scaria, 117 F.3d at 654. Plaintiff again has
failed to allege or argue any fact or theory on which a rational
fact finder could conclude that Defendant's proffered reasons for
her discharge were false, mere smokescreens for
The only "evidence," other than timing, Plaintiff offers to
support her allegation that Defendant's explanations for her
discharge were pretextual is her "satisfactory" rating in the
February 24, 1997 review (before filing of the EEOC charge).
See Pl. Mem. of Law at 6. In making this argument Plaintiff
looks to one portion of the review rather than taking the review
as a whole. The employment evaluation, which rated Plaintiff's
performance as "satisfactory" (insofar as the box "Achieved
planned results" is checked) is not overwhelmingly positive. The
narrative portion indicates that Plaintiff's performance "has
declined in the past year," and that "[i]mmediate improvement in
both areas [personal skills and supervisory difficulties] will be
necessary if Barbara is to continue in her supervisory position."
See Kimball Aff., Ex. D. Thus, Plaintiff was on notice, prior
to filing her EEOC charge, that NYSEG had contemplated removing
her from her supervisory position.
Construing the record in the light most favorable to the
Plaintiff, as required on a motion for summary judgment, the
Court is left to balance Defendant's overwhelming documentation
of Plaintiff's performance difficulties with Plaintiff's
conclusory allegations that her discharge was retaliatory.
Allegations that Defendant's justifications are pretextual,
combined with Plaintiff's history of satisfactory performance and
the timing of the complaint and discharge are not enough to
preclude granting summary judgment, see Holt v.
KMI-Continental, 95 F.3d 123, 130 (2d Cir. 1996), cert.
denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997);
Aldrich v. Randolph Cent. School District, 963 F.2d 520 (2d
Cir.), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d
359; Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert.
denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). The
evidence before the Court is insufficient to enable a jury to
reasonably conclude that a retaliatory motive led to Plaintiff's
discharge. See, e.g., Reilly v. Metro-North Commuter R.R. Co.,
1996 WL 665620, *14 (S.D.N.Y. Nov.15, 1996) ("The timing of
events alone, even if sufficient to meet plaintiff's prima facie
burden, cannot defeat summary judgment in the face of defendant's
proffered legitimate reason."). Accordingly, Defendant's motion
for summary judgment is granted.
2. ADA Claim
Defendant next moves for summary judgment on Plaintiff's
retaliation claims under the ADA, arguing that Plaintiff's claims
should be dismissed because she cannot establish a prima facie
case of retaliation under the ADA, 42 U.S.C. § 12101 et seq.
It is appropriate to use the Title VII burden shifting
framework, outlined above to analyze a claim of retaliation under
the ADA. See Sarno, 183 F.3d at 159.
It is unclear what "protected activity" forms the basis of
Plaintiff's ADA retaliation claims. Prior to her temporary
reassignment, Plaintiff made an informal complaint about pain and
numbness in her arm while typing. Plaintiff does not establish a
causal connection between this informal complaint and her
reassignment*fn14 and thus, she cannot establish a prima facie
that her reassignment was retaliatory.
Similarly, it is unclear what protected activity Plaintiff
believes led to her allegedly retaliatory discharge. After her
return to Oneonta, Plaintiff's tendinitis condition became more
aggravated, she began to seek medical assistance, and eventually
her work schedule was adjusted to accommodate the condition.
Although scheduling was an area of conflict between Plaintiff and
King, it was not a primary performance complaint. Assuming
Plaintiff's requested accommodations are the "protected
activity," Plaintiff has not shown a causal connection between
these requests and her eventual termination. The performance
complaints regarding Plaintiff focused on interpersonal
communication skills, organization, and basic ability to perform
the supervisory position rather than scheduling and/or inability
to perform certain tasks due to tendinitis.*fn15 Documentation
of these performance complaints began prior to the time
Plaintiff's activities were limited by tendinitis. Looking at the
record as a whole, and taking the facts in the light most
favorable to the Plaintiff, it is difficult to find a causal
connection between Plaintiff's allegations of discrimination and
the adverse employment actions of NYSEG. However, assuming the
necessary causal connection can be shown, Plaintiff faces the now
familiar hurdle — pretext. In order to succeed on a retaliation
claim, Plaintiff must provide evidence on which a rationale fact
finder could determine that NYSEG's asserted justifications for
her termination were pretextual. See Tomka, 66 F.3d at 1308;
Quinn, 159 F.3d at 768; Galdieri-Ambrosini v. National Realty
& Dev. Corp., 136 F.3d 276 (2d Cir. 1998). Plaintiff has not
done this. Therefore, Defendant's motion for summary judgment on
the ADA retaliation claim is granted.
E. Family Medical Leave Act
"[T]he FMLA was enacted because of Congress's view that `there
is inadequate job security for employees who have serious health
conditions that prevent them from working for temporary
periods.'" Sarno, 183 F.3d at 160. In an attempt to address
this problem, the FMLA contains both "prescriptive" and
"proscriptive" provisions. See Belgrave, 1999 WL 692034, * 42
(citing Hodgens v. General Dynamics Corp., 144 F.3d 151, 160
(1st Cir. 1998)). The proscriptive provisions create substantive
rights, whereas the prescriptive provisions protect an employee
from discrimination for exercising the substantive rights. Id.
In this case, the basis of Plaintiff's FMLA claim is not
articulated. Accordingly, it is unclear whether Plaintiff alleges
that her discharge violated Section 2614 of the FMLA, insofar as
she was never restored to her previous position, or that her
discharge violated Section 2615(a)(2) of the act, insofar as her
discharge was discriminatory. The Court will address both
An employer covered by the FMLA is required to grant an
"eligible employee" up to 12 weeks of leave during any 12-month
period for, inter alia, "a serious health condition that makes
the employee unable to perform the functions of the position of
such employee." 29 U.S.C.
§ 2615(D). The fact that NYSEG is a covered employer,
29 U.S.C. § 2611(4), and Plaintiff was an "eligible employee,"
29 U.S.C. § 2611(2), as defined by the FMLA, is undisputed. Instead, this
action questions whether Plaintiff's discharge violated her
substantive rights under the FMLA or discriminated against her
because of her exercise of her FMLA rights.
Substantive provisions of the FMLA, codified at 29 U.S.C. § 2611-2619,
entitle eligible employees to temporary leave (up to
12 weeks), to certain continuing benefits, and to reinstatement
to the same or an "equivalent position." Additionally, these
provisions make it "unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any
right provided under . . . subchapter [I of the Act]."
29 U.S.C. § 2615(a)(1). The FMLA grants eligible employees affected by such
unlawful conduct a private right of action for damages or
equitable relief. See id. § 2617(a)(1). To the extent pertinent
to this action, Section 2612 provides that:
an eligible employee shall be entitled to a total of
12 workweeks of leave during any 12-month period . ..
(D) Because of a serious health condition that
makes the employee unable to perform the functions of
the position of such employee.
29 U.S.C. § 2612(a)(1)(D).
Section 2614 provides, in pertinent part:
any eligible employee who takes leave under section
2612 of this title for the intended purpose of the
leave shall be entitled, on return from such leave —
(A) to be restored by the employer to the position
of employment held by the employee when the leave
(B) to be restored to an equivalent position with
equivalent employment benefits, pay, and to her terms
and conditions of employment.
Id. § 2614(a)(1).
Pursuant to the FMLA, 29 U.S.C. § 2654, the Secretary of Labor
has promulgated regulations at 29 C.F.R. Part 825, which provide
instruction in interpreting the FMLA. Those regulations
interpreting the return-from-leave provisions of the Act state,
inter alia, that:
[i]f the employee has been on a workers'
compensation absence during which FMLA leave has been
taken concurrently, and after 12 weeks of FMLA leave
the employee is unable to return to work, the
employee no longer has the protections of FMLA and
must look to the workers' compensation statute or ADA
for any relief or protections,
29 C.F.R. § 825.216(d), and that