claim, however, is unsupported by any admissible testimony or
other evidence; standing alone, it cannot defeat the present motion. On
the other hand, the admissible evidence leads to the conclusion that
plaintiff was not treated as having any impairment that substantially
limited any major life activity. Even Burnett admits that she was
promoted after she returned from her leave of absence.
Viewing the record in the light most favorable to plaintiff, the
evidence simply shows that plaintiff was unhappy with the fact that she
was not promoted as quickly as she wished, and that she attributed this
to a prior leave of absence. In my view, no rational trier of fact could
reasonably conclude from these facts that the benign incidents about
which plaintiff complains constitute unlawful discrimination because
Burnett was perceived as disabled from "stress" she experienced two years
earlier. Such an inference simply cannot be sustained on these facts.
Even drawing every inference in plaintiff's favor, then, she has not
shown the existence of a genuine issue of fact.
In sum, plaintiff has failed to establish a prima facie case. However,
even generously assuming that plaintiff had set forth the necessary
elements for a prima facie case of discrimination under the ADA, ESL has
submitted ample evidence in support of its proffered, legitimate,
non-discriminatory reason for taking the action it did. Quite simply, ESL
did not consider her application for the Head Teller position because she
lacked the requirements for that position.
Indeed, the contemporaneously drafted notes by Burnett's former
supervisor, Charles Henry, that appear on plaintiff's posting application
suggest precisely that. This admissible evidence was more than sufficient
to rebut the presumption of discrimination that might have been raised by
any possible prima facie case. I simply cannot see any evidence that
plaintiff has proffered tending to show that ESL's stated reasons were
pretextual, and her mere speculations are insufficient to establish
pretext.*fn5 See Duclair v. Runyon, 166 F.3d 1200, 1998 WL 852867 (2d
Cir. 1998) (noting that "the Supreme Court has made clear, as have
numerous opinions from this court, that the burden of persuasion —
the obligation to prove his or her case — is at all times borne by
the plaintiff"). Indeed, plaintiff herself concedes that "the burden of
proof is on me," and that she has "very little evidence proving my case."
That plaintiff may disagree with her supervision's decisions regarding
her applications for promotions is irrelevant. Such business decisions
are solely within an employer's discretion. Visco v. Community Health
Plan, 957 F. Supp. 381, 388 (N.D.N.Y. 1997) ("[a]n employer may exercise
business judgment in making personnel decisions as long as they are not
discriminatory); see also Dister v. Continental Group, Inc., 859 F.2d 1108,
1116 (2d Cir. 1988) ("[e]vidence that an
employer made a poor business
judgment generally is insufficient to establish a question of fact as to
the credibility of the employer's reasons"); Mesnick v. General Elec.
Co., 950 F.2d 816, 825 (1st Cir. 1991) ("[c]ourts may not sit as super
personnel departments, assessing the merits — or even the
rationality — of employers' non-discriminatory business
decisions"), cert. denied, 504 U.S. 985 (1992).
D. Plaintiff's Retaliation Claim
In her form complaint, plaintiff checked a box marked "retaliation."
Complaint, ¶ 13(h), Dkt. #1. However, she has offered no evidence
whatsoever in support of such a claim. Absent direct proof, "[t]he order
and allocation of burdens of proof in retaliation cases follow that of
general disparate treatment analysis as set forth in McDonnell Douglas
Corp. v. Green . . ." Sumner v. U.S. Postal Service, 899 F.2d 203, 208
(2d Cir. 1990) (citations omitted). To establish a prima facie case of
retaliation, a plaintiff must show (1) "protected participation or
opposition under [the ADA] known by the alleged retaliator," (2) "an
employment action disadvantaging the person engaged in the protected
activity," and (3) "a causal connection between the protected activity
and the disadvantageous employment action." DeCintio v. Westchester
County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987), cert. denied,
484 U.S. 965 (1987); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1308
(2d Cir. 1995).
Drawing all factual inferences in plaintiff's favor, plaintiff has
nonetheless failed to establish even a prima facie case of retaliation.
She has not established any protected activity under the ADA that was
known by ESL. In fact, she filed her charge only two days before she
tendered her resignation letter. Thus, she cannot establish any causal
connection between any protected activity with any disadvantageous
employment action. Plaintiff's speculative and conclusory allegations are
insufficient to establish pretext. In addition, inasmuch as plaintiff did
not reference any retaliation claim in her administrative charge, the
claim is barred due to her failure to exhaust her administrative
For all of the foregoing reasons, defendant's motion for summary
judgment (Dkt. #12) is granted. The complaint is dismissed with
IT IS SO ORDERED.