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March 28, 2002


The opinion of the court was delivered by: David G. Larimer, Chief United States District Court Judge.


Procedural Background

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.

Factual Background

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.

In June 1998, ESL posted an available position for Head Teller. The posting for the position noted that a "minimum of 3-5 years ESL Teller or Senior Teller experience" was a "position prerequisite." On August 27, 1998, plaintiff completed an application for this position. On her application, however, plaintiff admitted that she only had 14 months of experience in her then current position.

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 Burnett's application:

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 observed:

[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 ...

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