The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Denise Jackson, filed a complaint, pro se, on
December 27, 2001, alleging discrimination in employment in violation of
Tile VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. ("Title VII") and the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq. ("ADA"). Defendant, Nor Loch Manor
Healthcare Facility, has moved for summary judgment dismissing the
complaint. For the reasons stated, the motion is granted and the
complaint is dismissed.
Plaintiff's complaint is a form complaint. In that form, plaintiff
checked the line indicating that her pleading was a Title VII claim, but
she failed to note that she was proceeding under the ADA. In paragraph 14
of the complaint, she alleged that the defendant's conduct was
discriminatory based on her "race" and "color." She did not check the box
indicating disability, although later in
the complaint she makes reference to notifying her employer of a
disability. (Plaintiff's Complaint, Dkt. #1).
Plaintiff's State Division and EEOC charge, however, claim only
unlawful discrimination on account of a disability. (Defendant's Motion
for Summary Judgment, Dkt. #17, Ex. A). The State Division and EEOC
decisions finding no probable cause dealt with that claim only. (Dkt.
#17, Exs. C and D).
To the extent Plaintiff's complaint suggests a claim of race
discrimination pursuant to Title VII, the complaint must be dismissed.
There was no EEOC filing alleging such discriminatory conduct, and that
by itself requires dismissal. See 42 U.S.C. § 2000e-5(e);
Legnani v. Alitalia Linee Aeree Italiane, 274 F.3d 683, 686 (2d
Cir. 2001) ("Exhaustion of administrative remedies through the EEOC is
`an essential element' of the Title VII . . . statutory scheme and,
as such, a precondition to bringing such claims in federal court.").
Furthermore, there is no evidence in the record that the decision to
terminate plaintiff was based on her race. In fact, in her opposition to
defendant's summary judgment motion, plaintiff makes no allegations that
defendant discriminated against her because of her race. Therefore,
defendant is entitled to summary judgment on any Title VII.
Defendant also contends that summary judgment must be granted on
Plaintiff's ADA claim on the grounds that plaintiff was terminated for
cause due to excessive absenteeism and the failure to follow company
policy concerning illnesses and leave. Defendant also moves for judgment
in its favor on the ground that plaintiff has failed to make out a
prima facie case of discrimination based on a disability. I
agree with defendant's contentions.
First of all, I do not believe that plaintiff has made out a prima
facie case of discrimination under the ADA. See Regional
Economic Community Action Program, Inc. v. City of Middletown,
294 F.3d 35, 48-49 (2d Cir. 2002) (noting that ADA claims are analyzed using
the McDonnell Douglas burden-shifting analysis). To establish
such a claim and defeat summary judgment here, plaintiff must demonstrate
the following: (1) that she is an individual with a disability within the
meaning of the ADA; (2) that her employer is subject to the ADA and had
notice of her disability; (3) that she was otherwise qualified to perform
the essential functions of her position, with or without reasonable
accommodation; and (4) that she was fired because of her disability.
Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999); Ryan
v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998).
Plaintiff has failed to submit any competent evidence that she had a
physical impairment that substantially limited a major life activity.
42 U.S.C. § 12102(2) (defining disability). It appears, at most, that
plaintiff was ill for a period of time which may have caused a short
absence from work. Further, although the medical records plaintiff filed
in opposition to summary judgment indicate that she had certain medical
problems with an abscess, that is not enough to sustain a claim under the
ADA. See Toyota Motor Mfg, Ky., Inc. v. Williams, 534 U.S. 184,
195 (2002) ("Merely having an impairment does not make one disabled for
purposes of the ADA."). Instead, to defeat summary judgment, plaintiff
must establish that those problems significantly affected her ability to
work or otherwise engage in a substantial life activity. See Adams v.
Master Carvers of Jamestown, Ltd., 00-CV-0808, 2002 WL 31194562
(W.D.N.Y. Sep. 12, 2002) (collecting cases) (temporary impairments,
including the need to recuperate from surgery, do not constitute
substantial limitations of the major life activity of working).
Therefore, defendant is entitled to summary judgment on
Plaintiff's ADA claim. See Ryan, 135 F.3d at 871-72
(affirming summary judgment to employer where employee failed to
establish that disability substantially affected her ability to engage in
a major life activity); Adams, 2002 WL 31194562, at *4
(plaintiff failed to establish that he was disabled for purposes of the
ADA because his temporary need for medical leave did not substantially
limit his ability to work).
Second, even if plaintiff did establish a prima facie case,
she has not offered competent evidence that the reasons given by
defendant for termination absenteeism and failure to follow
company rules were a pretext for discrimination. On the contrary,
the record submitted in support of the motion shows that plaintiff had a
high number of unapproved absences from work and that she had received
three prior warnings concerning her absenteeism and tardiness.
(See Affidavit of Jacalyn O'Loughlin, Dkt. #17; Employee
Absentee Reports and Employee Warning Notices, Dkt. #17, Exs. G and H).
Further, plaintiff failed to rebut the defendant's evidence that this
conduct violated defendant's written employment policies. (See
Employment Rules related to unexcused absences, sick leave, and
discipline for misconduct, Dkt. #17, Exs. J, K, and L). Certainly, an
employer is entitled to discharge an employee who fails to follow company
rules and fails to appear for work without notification, even if the
absences are attributable to a medical problem. Plaintiff has failed to
provide any competent evidence that the stated reason for her dismissal
was a pretext for any discriminatory action relating to any alleged
Although I must construe plaintiff spro se pleadings
liberally, and interpret them as raising the strongest arguments that
they suggest, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994), "proceeding pro se does not otherwise relieve [plaintiff]
from the usual requirements of summary judgment." Fitzpatrick v. New
York Cornell Hosp., 00 Civ. 8594, 2003 WL 102853, *5 (S.D.N.Y.
Jan. 9, 2003) (citing cases); see also Lee v. Coughlin,
902 F. Supp. 424, 429 (S.D.N.Y. 1995) (holding that a "pro se
party's `bald assertion,' completely unsupported by evidence, is not
sufficient to overcome a motion for summary judgment") (citing Carey
v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). Although plaintiff
believes her termination to be unfair, she must prove more than that. She
must prove that she was terminated for an unlawful reason, in this case
because of a disability, as that term is defined under the ADA. Defendant
has submitted a legitimate reason for the termination, and plaintiff has
failed to carry her burden of showing that the reasons stated,
absenteeism and failure to follow company policy, were a pretext for
Defendant's motion for summary judgment (Dkt. #17) is granted and the
complaint is dismissed.