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BURNETT v. ESL FEDERAL CREDIT UNION
March 28, 2002
JOAN H. BURNETT, PLAINTIFF,
ESL FEDERAL CREDIT UNION, DEFENDANT.
The opinion of the court was delivered by: David G. Larimer, Chief United States District Court Judge.
In this action, plaintiff Joan Burnett ("Burnett") alleges that her
former employer, ESL Federal Credit Union ("ESL") discriminated against
her in violation of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12101 et seq. ("ADA"). Currently before the Court, is
ESL's motion (Dkt. #12), under FED. R. CIV. P. 56, for summary judgment.
For the reasons that follow, ESL's motion is granted.
ESL hired plaintiff in June 1995 as a Teller Trainee. In her first
months at ESL, Burnett performed satisfactorily, and she received an
overall performance rating of "3" for the remaining months of 1995. In
January 1996, plaintiff requested permission for a leave of absence. In
support of her request, Burnett advised Nancy Storr, an ESL
vice-president and human resources manager, that she was under "stress"
at that time. ESL granted plaintiff's request, and Burnett's leave of
absence began on January 17, 1996.
Nearly six months later, on July 8, 1996, she returned to work. The
record reflects that, after her return, ESL continued to find plaintiff's
work to be satisfactory. In fact, her overall performance rating
increased from "3" in 1995 to "4" in 1996. ESL subsequently promoted
Burnett to Teller on January 20, 1997, and to Member Service Specialist
on July 21, 1997.
The position posting also listed, among other things, "supervisory
skills" as a position prerequisite. On September 1, 1998, plaintiff's
former supervisor, Charles Henry, Jr., noted that, although plaintiff was
performing in a fully satisfactory manner and had not received any written
warning within the past year, she lacked the position requirements as
listed on the job posting. He added the following additional comments on
Not qualified for Head Teller position. Needs
leadership and supervisory skills. Suggested she post
for a Senior Teller position first.
On September 16, 1998, after plaintiff had been advised that she would
not be considered for the Head Teller position, she tendered a
resignation letter, dated September 3, 1998. She had been employed by ESL
for little more than three years when she resigned.
On September 14, 1998, just two days before she tendered her
resignation but over a week after she dated her resignation letter,
plaintiff filed a charge with the New York State Division of Human Rights
("State Division") in which she claimed that ESL discriminated against
her because she was not offered certain positions in 1998. The charge was
deemed contemporaneously filed with the Equal Employment Opportunity
Commission ("EEOC"). On April 24, 2000, following its investigation of
plaintiff's charge, the State Division issued its determination that
"there is no probable cause to believe that [ESL] has engaged in or is
engaging in" disability discrimination. The State Division further
[t]he investigation did not disclose sufficient
evidence to support a belief that the complainant was
denied equal terms, conditions and privileges of
employment, or denied available positions by the
respondent, because of a perceived disability. The
investigation disclosed that the complainant was
promoted twice in 1997 after having been out on
disability for almost six months in 1996. There is no
evidence that management employees who were involved
in the posting and promotion process perceived the
complainant to have a disability during the time she
was posting for three separate positions in 1998. Some
of those managers were unaware that the complainant
had been out on disability 1996. . . . After
investigation there is insufficient evidence to
support a belief that the complainant was unlawfully
discriminated against by the respondent because of a
perceived disability. The complaint is therefore
ordered dismissed and the file is closed.
On June 7, 2000, the EEOC adopted the State Division's findings, and also
closed its file on plaintiff's charge.
In her pro se complaint, plaintiff alleges disability discrimination in
violation of the ADA. More specifically, she alleges that her 1996
performance appraisal, issued on January 15, 1997, was adversely impacted
by a perception that Burnett was disabled. She also appears to assert
that her application for the Head Teller position in 1998 was not given
the proper consideration in September 1998 because she was perceived as
disabled. Complaint, ¶¶ 6, 19, Dkt. #1. ESL counters that plaintiff
has failed to raise a prima facie case under the ADA.*fn1
This Court subsequently provided plaintiff, because of her status as a
party appearing pro se, with notice of the requirements of Rule 56 as well
as this Court's Local Rules 7.1(e) and 56, and of the consequences of
noncompliance therewith. Decision and Order, entered July 2, 2001, Dkt.
#20*fn2; see also Irby v. New York City Transit Authority, 262 F.3d 412
(2d Cir. 2001). I also granted plaintiff an additional opportunity to
serve supplemental papers in opposition to ESL's motion, and to comply
with FED. R. CIV. P. 56 and Local Rules 7.1(e) and 56. Plaintiff
thereafter submitted another one page letter with attachments. Dkt. #21.
She never filed any affidavits or memorandum.
Defendant now moves, under FED. R. CIV. P. 56, for summary judgment,
asserting that plaintiff's complaint should be dismissed in its entirety
both because plaintiff is not disabled under the ADA, and even if she
is, there ...