The opinion of the court was delivered by: William M. Skretny United States District Judge
In this action, Plaintiff Deborah Curry alleges that Defendant Federal Express Corporation unlawfully discriminated against her based on her sex and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), and the New York Human Rights Law. In addition, Plaintiff claims that she was subjected to a hostile work environment and retaliation for filing a discrimination complaint. Currently before this Court is Defendant's Motion for Summary Judgment.
The following facts are undisputed for purposes of this motion. Plaintiff started working for Federal Express ("Fed Ex") on December 10, 1997, as a temporary handler. (Def's State., ¶ 1). She was subsequently promoted to permanent part-time courier on June 29, 1998. (Def.'s State., ¶ 5). During all relevant times, her manager was John Farsworth. (Def.'s State., ¶ 7). Plaintiff continued as a part-time courier until she voluntarily resigned from Fed Ex on June 20, 2002. (Def.'s State., ¶¶ 8, 74-75).
Plaintiff claims that during her employment with Fed Ex, Jason Snell, a co-worker employed in a different work group, expressed comments of a sexual nature to her on a pervasive basis. (Def.'s State., ¶¶ 14, 15, 29). Mr. Snell allegedly told Plaintiff two or three times over a number of months that if she needed someone to show her a good time, he was always available. (Def.'s State., ¶ 16). Thereafter, Mr. Snell commented to Plaintiff that she looked "fine" and "hot," and that she was too young to be a grandmother. (Def.'s State., ¶¶ 18, 20, 21). Two or three times when he made these comments, Mr. Snell put his arm around Plaintiff. (Def.'s State., ¶ 25).
Plaintiff does not allege that any other employee made comments to her. However, she claims that the male couriers would wrestle each other and grab each other's private parts, a behavior she thought was "childish." (Def.'s State., ¶¶ 27, 31). The male employees did not touch any of the female employees during these wrestling incidents. (Def.'s State., ¶ 28). Plaintiff never saw Mr. Snell engaging in any of this "horseplay," and she never saw him touch another male courier. (Def.'s State., ¶¶ 33-34).
On December 7, 2001, after returning from her courier route at 8:30 p.m., Plaintiff was talking to her manager, John Farnsworth, and another employee, when Mr. Snell ran at her, threw his arms around her, picked her up off the floor and ran backwards with her about ten or fifteen feet. (Def.'s State., ¶ 45). This happened very fast, and they both fell, causing injuries to Plaintiff's head, neck and arms. (Def.'s State., ¶¶ 47-48, 56). Plaintiff cannot say that this was a sexual assault, and her resignation letter described it as a "tackle." (Def.'s State., ¶¶ 54, 75). Mr. Snell apologized and helped her up. (Def.'s State., ¶ 53). Because she was injured, her manager filled out a workers' compensation report. (Def.'s State., ¶ 64).
Fed Ex has a Sexual Harassment policy, of which Plaintiff was fully aware. (Def.'s State., ¶¶ 35-36). Both the Guaranteed Fair Treatment/EEO Complaint Process ("GFTP") and Sexual Harassment policies are contained in the Employee Handbook, which Plaintiff received. (Def.'s State., ¶¶ 9-11). The GFTP/EEO Complaint Process is also set forth on a plaque at the Fed Ex station. (Def.'s State., ¶41). When she was employed at Fed Ex, Plaintiff was given training on the Sexual Harassment policy. (Def.'s State., ¶ 35). Plaintiff knew she had a right to make a written complaint of sexual harassment through the GFTP. (Def.'s State., ¶ 42). However, she never made a written complaint to anyone at Fed Ex about sexual harassment while she was employed. (Def.'s State., ¶ 37). Plaintiff never filled out an employee information statement form regarding sexual harassment, nor did she complain to her matrix Human Resources representative. (Def.'s State., ¶¶ 43-44). Plaintiff never complained to her Senior Manager, Managing Director, or personnel representative about her alleged sexual harassment (Def.'s State., ¶ 38), although she "believes" that she reported Mr. Snell to her managers Kelly Shapiro and Mr. Farnsworth. (Def.'s State. , ¶¶ 17, 22). She did not, however, avail herself of the Open Door policy to complain to higher management about sexual harassment. (Def.'s State., ¶ 39).
Among the essential duties and functions of the Plaintiff's position as a courier, Plaintiff was required to lift packages up to 75 pounds, and maneuver packages of any greater weight with appropriate equipment and/or assistance from another person. (Def.'s State., ¶ 66). As of June 18, 2002, Plaintiff's doctor reported that she could not perform these duties. (Def.'s State., ¶ 67). From January 21, 2002, until March 25, 2002, Plaintiff participated in the Temporary Return to Work ("TRW") program. (Def.'s State., ¶¶ 69, 72). The TRW policy provides placement for employees who are temporarily unable to perform the full range of their regular job duties, but who have been released by their physician to work in a limited capacity. (Def.'s State., ¶ 71). A temporary placement cannot exceed 90 calendar days. (Def.'s State., ¶ 71). From the time of Plaintiff's injury on December 7, 2001, until she resigned on June 20, 2002, she could not meet the essential lifting requirement of her position. (Def.'s State., ¶ 79).
Human Capital Management Program Manager William Mayo ("Mayo") advised Plaintiff that she was going to be returned from TRW to basic Workers' Compensation leave. (Def.'s State., ¶ 81). Pursuant to Fed Ex's Medical Leave of Absence Policy, Plaintiff would have a maximum of 365 Workers' Compensation days of leave. (Def.'s State., ¶ 84). Mayo advised Plaintiff that if she was unable to return to work within 90 calendar days, Fed Ex might need to replace her. (Def.'s State., ¶ 85). If she had been given permanent restrictions and limitations by her doctor, she would have been given the right to submit unlimited Job Change Applications ("JCAs") for another position, or she would have been terminated and given a lump sum benefit payment at the end of 90 days, provided no position was offered to or accepted by her, and she had not yet returned to work. (Def.'s State., ¶ 88).
Plaintiff inquired about a Customer Service Agent position, but there is no evidence that she ever applied for one. (Def.'s State., ¶ 89). In any event, Plaintiff could not perform the essential functions of the Cutsomer Service Agent position, which also requires the ability to lift 75 pounds. (Def.'s State., ¶ 92). Plaintiff admits that Fed Ex has no permanent light duty positions. (Def.'s State., ¶ 68). Plaintiff resigned before she was assigned permanent restrictions and before Fed Ex could determine what, if any, positions she could perform with or without an accommodation. (Def.'s State., ¶¶ 97-98). While she was still employed at Fed Ex, Plaintiff applied for and was offered a position at Wilson Greatbatch. (Def.'s State., ¶¶ 75, 77-78). She began working at Wilson GreatBatch on June 24, 2002, just four days after she resigned her position at Fed Ex. (Def.'s State., ¶ 77).
Plaintiff filed a charge of discrimination with the New York State Division of Human Rights on October 24, 2002, which was dually filed with the EEOC. (DeLuca Aff., Exh. V). Therein, Plaintiff alleged that she was discriminated against based on sex and "retaliated against after sustaining [an] injury." (DeLuca Aff., Exh. V). Plaintiff claimed that in February 2002, Mr. Snell was put on light duty next to her at the front counter, even though she had requested that they be kept separate. (DeLuca Aff., Exh. V). Plaintiff testified that Defendant removed Mr. Snell as soon as she complained, and that she had no further contact with him. (Def.'s State., ¶¶ 99-100). Plaintiff also testified that it is not her claim that Defendant retaliated against her because of any complaints about sex discrimination or harassment. (Def.'s State., ¶ 101).
Plaintiff filed this action on June 18, 2003, in the State of New York Supreme Court, County of Erie. On August 14, 2003,Defendant removed this case to the United States District Court for the Western District of New York. On May 20, 2005, Defendant filed the instant Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 For the following reasons, Defendant's Motion is granted with respect to Plaintiff's federal claims.
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id. In a case where the non-moving party bears the ultimate burden of proof at trial, the movant may satisfy its burden by pointing to the absence of evidence supporting an essential element of the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d 265 (1986).
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
In the context of employment discrimination cases, the Second Circuit has cautioned district courts to use care when deciding summary judgment motions because "the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication." Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). However, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Id.
B. Defendant's Motion for Summary Judgment
Plaintiff asserts five causes of action. In her first and second causes of action, Plaintiff alleges discrimination based on disability under the ADA and New York Human Rights Law. In her third cause of action, she asserts that she was retaliated against for making complaints of disability discrimination. In her fourth and fifth causes of action, she alleges sexual discrimination and harassment under Title VII and the New York Human Rights Law.
Defendant moves for summary judgment on all of Plaintiff's claims. Specifically, Defendant first argues that Plaintiff's sexual discrimination and harassment claims under Title VII are time-barred, or in the alternative, that they fail as a matter of law. Second, Defendant argues that insofar as the Complaint asserts a claim of constructive discharge, Plaintiff has failed to exhaust her administrative remedies with respect to such a claim. Further, Defendant argues that Plaintiff's claim of disability discrimination is unexhausted, and in any case, that Plaintiff is not disabled within the meaning of the ADA. Defendant next argues that Plaintiff has failed to present any evidence of retaliation. Finally, Defendant contends ...