Even assuming, arguendo, that Scott had made a prima facie
showing of discrimination under the ADA, the burden shifts to
the defendant to articulate a lawful, non-discriminatory basis
for the hiring. McDonnell Douglas v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the defendant can make
such a showing, the burden shifts back to the plaintiff to show
that the reason proffered by the defendant is pretextual and
that there was intentional discrimination. St. Mary's Honor
Ctr., 509 U.S. at 516, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993);
Heyman v. Queens Village Committee for Mental Health for
Jamaica Community Adolescent Program, Inc., 198 F.3d 68, 72 (2d
We have examined each of the arguments plaintiff advances in
support of her claim of pretext and find all of them wanting.
Because this discussion is at the third level of analysis, we
will simply summarize our conclusions. First, plaintiff has made
no showing by affidavit that the administrative termination
policy was not applied uniformly, or that she was told that she
would have up to one year in which to return to work. Second,
plaintiff complains about various comments made by her
supervisor concerning her returning to work. Not only did her
supervisor not hire a replacement for plaintiff until after she
had been administratively terminated, but he was not the
decisionmaker with respect to her termination. See Ellis v.
Provident Life & Accident Ins. Co., 926 F. Supp. 417, 428
(S.D.N.Y. 1996); Wado v. Xerox Corp., 991 F. Supp. 174, 212
(W.D.N.Y. 1998), aff'd, sub. nom., Smith v. Xerox Corp.,
196 F.3d 358 (2d Cir. 1999).
In sum, Scott has failed to show that she was a "qualified
individual" under the ADA because she had already been
terminated by Memorial at the time she requested an
accommodation. Even assuming that plaintiff was protected by the
ADA, she has not set forth a prima facie case because she failed
to present any evidence that there was an accommodation that
would enable her to perform the essential functions of her
position. Finally, she has not produced any evidence to suggest
that Memorial's decision to administratively terminate her was a
pretext for actual discriminatory intent. Therefore, plaintiff's
claim that Memorial failed to make a reasonable accommodation
for her disability fails as a matter of law, and summary
judgment is granted for defendant on that claim.
IV. Hostile Work Environment Claims
Plaintiffs complaint also alleges that Memorial discriminated
against her on the basis of her age in violation of the ADEA and
her race and gender in violation of Title VII by creating a
hostile working environment. While plaintiff never actually
included a hostile working environment under the ADA in her
laundry list of discrimination claims contained in the
complaint, she does argue the issue in her papers. We will,
therefore, address the merits of this claim as well.
Under Title VII, an employee seeking to bring a hostile work
environment claim must satisfy a four factor test: 1) that
plaintiff is a member of a protected class; 2) that plaintiff
suffered unwelcome harassment; 3) that plaintiff was harassed
because of her membership in a protected class; and 4) that the
harassment was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive work environment.
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106
S.Ct. 2399, 91 L.Ed.2d 49 (1986); Tomka v. Seiler Corp.,
66 F.3d 1295, 1305 (2d Cir. 1995). See also Cosgrove v. Sears,
9 F.3d 1033, 1042 (2d Cir. 1993) (stating that plaintiff bringing
Title VII hostile work environment claim had to show that the
harassment she suffered was because of her gender). Courts have
held that hostile work environment claims under ADA and ADEA are
evaluated under the same standards as Title VII claims. See
Brennan v. Metropolitan Opera Assn., Inc., 192 F.3d 310, 316-17
(2d Cir. 1999) (ADEA); Disanto v. McGraw-Hill, Inc./Platt's
Div., 1998 WL 474136, at *5 (S.D.N.Y. Aug. 10, 1998) (ADA). The
defendant concedes that plaintiff is a member of the protected
classes she alleges.
The standard for a hostile work environment claim is a
demanding one. The plaintiff must prove that the conduct was
offensive, pervasive, and continuous enough to amount to a
constructive discharge. See Kotcher v. Rosa & Sullivan
Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992). The
Supreme Court has stated that Title VII is not intended to
create a code of civility. Faragher v. City of Boca Raton,
524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Among the
factors to be considered in determining whether conduct is
sufficiently hostile under the totality of the circumstances
are: frequency; severity; whether the conduct is physically
threatening or humiliating; and whether it interferes with an
employee's performance. Harris, 510 U.S. at 23, 114 S.Ct. 367.
Plaintiff complains about occasional statements and has made no
showing that they were routine rather or severe. See Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998). In
the latter regard, the Second Circuit has made it clear that
insensitive comments are not per se unlawful. Williams v.
County of Westchester, 171 F.3d 98, 101 (2d Cir. 1999). There
is no evidence in the record of any physical threats or
humiliation. Similarly, plaintiff cannot argue that Dr. Bertino
hindered her work performance by insisting that she come to
work. Finally, we think it important that the comments
complained about by plaintiff were made in the context of her
supervisor asking her whether she would return to work or not,
and, if she was not going to return, when she would resign. We
do not think it unreasonable for an employer to ask when an
employee will be able to perform her job. Cf. Harris v. Home
Savings Assn., 730 F. Supp. 298, 307 (W.D.Mo. 1989) (holding
that it is part of the normal course of business for an employer
to ask an employee when she plans to return to work). Even if
the plaintiff thought that the question of whether she would
work full-time or resign was asked too often and that Dr.
Bertino expressed unhappiness with her reduced capacity to work,
she has not demonstrated that the workplace was so "permeated
with `discriminatory intimidation, ridicule, and insult,' that
is `sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working
environment,'" as to constitute a hostile working environment.
Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal citations
Plaintiff has not even alleged that anyone at Memorial made
comments related to her age, gender, or race at any time.
Therefore, she could not possibly base a hostile work
environment claim on Title VII or ADEA. As Dr. Bertino's
comments about her disabled status did not reach the demanding
levels of conduct set out in the case law, plaintiff cannot
prove a claim under the ADA for a hostile work environment.
Accordingly, defendant's motion for summary judgment on
plaintiffs hostile work environment claims is granted.
V. Retaliatory Dismissal Claim
Although not specifically plead in her complaint, plaintiff
also suggests in her papers that her job was threatened and that
she was ultimately fired in retaliation for her complaints about
Dr. Bertino. Complaint, ¶ 26. The Second Circuit has held that,
in order to establish a prima facie case for an adverse
employment action, a plaintiff must show that the action
occurred under circumstances creating an inference that the
discrimination was based on the plaintiffs membership in a
particular class. Fisher v. Vassar College, 114 F.3d 1332,
1335 (2d Cir. 1997). Plaintiff has established no causal
connection between her complaint and Dr. Bertino's statements.
The timing of plaintiffs undermines her claims. She made her
statements about Dr. Bertino in February but was not dismissed
until July. In fact, as discussed in Part III of this opinion,
plaintiff has failed to present any evidence that rebuts
Memorial's argument that Scott was administratively terminated.
Furthermore, defendants have shown that Dr. Bertino, whose
actions are in question, was not a decisionmaker in the
termination, so he could not have fired her in retaliation for
her complaints about him. Therefore, plaintiffs retaliatory
dismissal claim also fails.
As plaintiff has failed to make out a case on any of her
claims, whether plead in the complaint or not, defendant's
motion for summary judgment is granted. The Clerk of the Court
is respectfully directed to close this case.
IT IS SO ORDERED.