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July 5, 2000


The opinion of the court was delivered by: Rakoff, District Judge.


Move over, Archie Bunker. According to the plaintiff here, defendant Brink's Inc. and three of its executives are so steeped in prejudice that they intentionally discriminated against her on grounds of race, national origin, gender, age, and disability — all at once. The only problem is that even after extensive discovery plaintiff cannot support any of these allegations with sufficient evidence to avoid summary judgment.

The pertinent facts, either undisputed or, where disputed, taken most favorably to plaintiff, are as follows:

Plaintiff Teresa Rosa was born in Brazil in 1955. In her Complaint, she states that she is "a Hispanic Latin female of Brazilian origin." Cmplt. ¶ 11. In her statement of facts submitted pursuant to Local Rule 56.1, she states that she "is mixed race; her mother is black. [Her] mother's father is black and her father is Caucasian Brazilian." See Pl. 56.1 Stmt. ¶ 5.

Plaintiff was hired by Brink's in August, 1994 as an Administrative Assistant in Brink's Diamond and Jewelry division, reporting to Barry Berman, the General Manager of that division. See Pl. 56.1 Stmt. ¶¶ 6, 30. About two months later, she was given the title of Office Manager. See Def. 56.1 Stmt. ¶ 16; Pl. 56.1 Stmt. ¶ 31. Her duties included secretarial tasks, managing the switchboard, preparing presentations for Berman, processing new employees, and coordinating the purchase and lease of office supplies and equipment. See Pl. 56.1 Stmt. ¶ 34; Def. 56.1 Stmt. ¶ 23.

Over time, plaintiff also assumed increased Human Resources duties, and in June 1997, her title was changed to "Office/HR Manager." See Def. 56.1 Stmt. ¶¶ 26-30; Pl. 56.1 Stmt. ¶¶ 32-38. While this change did not entail a raise, it was accompanied by a decrease in her secretarial functions, and, in August 1997, Berman hired a separate employee, Teresita Belen, to serve as his secretary. See Def. 56.1 Stmt. ¶ 35; Pl. 56.1 Stmt. ¶¶ 25, 32.

Beginning in early 1998, Brink's began consolidating its Diamond and Jewelry division with another unit, the Air Courier division. See Pl. 56.1 Stmt. ¶ 98; Def. 56.1 Stmt. ¶ 59. While this was in progress, plaintiff, on April 27, 1998, tripped over a cabinet door at work and injured her lower back. See Pl. 56.1 Stmt. ¶ 96. She took an immediate leave of absence that ultimately extended more than six months, to November, 1998. See Def. 56.1 Stmt. 52; Pl. 56.1 Stmt. ¶ 96.

During the time plaintiff was on leave, the consolidation continued, under the direction of defendant Joseph Eyal, a Vice-President and Managing Director of Brink's, and defendant Louis Biron, who was made the manager of the newly combined division. See Pl. 56.1 Stmt. ¶ 98-101. Among other things, the efficiencies incident to the consolidation resulted in the termination of plaintiff's immediate boss, Berman, most of whose duties were reassigned to defendant Murray Rouse. See Pl. 56.1 Stmt. ¶ 99; Def. 56.1 Stmt. ¶ 92. Contemporaneous with this move, most of plaintiff's Human Resources functions were assumed by Biron, while one Amanda Wright assumed plaintiff's clerical functions. See Def. 56.1 Stmt. ¶¶ 93; 107-08. Both Biron and Wright previously worked in the Air Courier division. See id. at 54; 107.

Plaintiff — still on leave and only very occasionally in contact with Brink's during this period — was not informed of these changes at the time. However, on November 12, 1998, she left a voicemail message for Biron letting him know that she was ready to return to work. See Pl. 56.1 Stmt. ¶ 118. In response, Biron wrote to plaintiff that same day (November 12) advising her that he had received her request to return but that her position had been abolished and that she should consider her employment terminated as of November 16, 1998. See Fulco Aff, Ex. 28; Pl. 56.1 Stmt. ¶ 121. Biron's letter did invite plaintiff to inquire about any open position for which she was qualified; but when, on November 16, 1998, plaintiff called Biron to ask about possible openings, see Pl.Ex. 29, Biron responded that he himself had no vacancies but that he would check with Rouse. See id. Thereafter, Rouse responded that there was nothing suitable for plaintiff at that time. See Rouse Decl. ¶ 5; Pl. 56.1 Stmt. ¶ 136.

Plaintiff then filed a charge, on March 3, 1999, with the United States Equal Employment Opportunity Commission, alleging that she had been wrongfully terminated and otherwise discriminated against because of her race, national origin, sex, age and disability. Subsequently, on June 28, 1999, she filed the instant Complaint, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("section 1981"), the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"), the New York State Human Rights Law, Executive Law § 290, et seq., and the Administrative Code of the City of New York § 8-101, et seq.

In addition to alleging that plaintiff had been terminated in violation of each of these laws, the Complaint also vaguely hinted that plaintiff was alleging still other causes of action premised on other alleged acts taken by Brink's. However, in her briefing on the instant motion, plaintiff has made clear that the only claims that she is still pursuing beyond wrongful termination are claims that Brink's discriminatorily reduced her job responsibilities, denied her a particular raise, and failed to give her a particular promotion. See Pl. Mem. at 2.*fn1

Against this background, the Court, after a careful review of the parties' submissions taken most favorably to plaintiff, concludes that the only one of plaintiff's claims that is even arguably colorable is her claim that she was terminated on the basis of disability. But even this claim is legally deficient, on several grounds.

To begin with, plaintiff no longer contests that the consolidation of the Air Courier division with the Diamond and Jewelry division was an independent business decision that led, inter alia to the termination of various employees including her own immediate boss, or that as part of that consolidation her duties were assumed (at least temporarily) by persons brought over from the Air Courier division. She argues, nonetheless, that the defendants' failure to inform her of her termination until she requested the opportunity to return following her medical leave supports a finding of intent to discriminate on the ground of disability.

This argument fails, however, because plaintiff offers nothing to show that Biron, who fired her, believed she would still be suffering from any disability when she returned to work. On the contrary, she made no mention of it in her voicemail message of November 12, 1998, to which he responded, that very day, with his letter informing her that her prior job had been abolished. See Pl. 56.1 Stmt. ΒΆ 118; Fulco Aff. Ex. 28. Rather, plaintiff's alleged continuing disability was first mentioned only in a follow-up letter that plaintiff insists she sent to Biron on November 13, 1998, in which plaintiff requested various accommodations on her return to work. But even plaintiff, whose testimony is the sole support for the existence of this letter, does not contend that the November 13 ...

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