The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff brought this employment discrimination case on September 30, 1997, alleging causes of action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq., the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., and the New York State Human Rights Law, N.Y.Exec. Law § 290, et seq. ("NYSHRL"). Item 1. Plaintiff was employed by the defendant corporation*fn1 from September 1979 until his discharge in January 1996.
Following a bankruptcy proceeding and a change in plaintiff's counsel, the parties stipulated that plaintiff's age discrimination claims under the ADEA and NYSHRL were permanently withdrawn with prejudice. Item 58. On September 29, 2003, defendant moved for summary judgment dismissing the complaint. Item 66. Plaintiff filed his response on January 7, 2004. Item 74. Thereafter, on February 19, 2004, plaintiff filed a motion for an adverse inference. Item 83. He argued that defendant failed to preserve evidence that was relevant to his ADA claim--specifically, evidence of plaintiff's interviews with an industrial psychologist.
Plaintiff also filed a motion to amend the complaint on March 19, 2004. Item 88. He sought to "clarify the plaintiff's claims based on the facts that have arisen during the lengthy period of discovery." Item 88, Liebers Affidavit, ¶ 4. On April 2, 2004, defendant filed a response to plaintiff's motions (Items 92, 93) and a reply in support of its motion for summary judgment. Item 91. On April 28, 2004, plaintiff filed a surreply memorandum of law in opposition to the motion for summary judgment (Item 100) and a memorandum of law in support of his motion for an adverse inference. Item 101. Oral argument was heard on May 25, 2005. Thereafter, plaintiff filed a letter brief on October 12, 2005. Item 108. The court allowed defendant an opportunity to respond, and it filed a supplemental memorandum of law on November 18, 2005. Item 111. For the reasons that follow, the defendant's motion for summary judgment is GRANTED, the plaintiff's motion for an adverse inference is DENIED, plaintiff's motion to amend the complaint is DENIED, and the complaint is dismissed.
Plaintiff began his employment with defendant Dexter Corporation on September 17, 1979. Item 67, Exh. C, Deposition of Paul Matya ("Matya Dep."), p. 8. In May 1993, plaintiff held the position of Director of Finance, Electronic Packaging Products ("EEP"), in the company's Olean, New York, facility, and was responsible for coordinating financial reporting for EEP locations worldwide. Id., p. 463. From 1989 until 1995, plaintiff reported directly to Dick Jensen, Vice President and General Manager of the EEP sub-group. Id., p. 158; Item 67, Exh. D, Deposition of Richard Jensen ("Jensen Dep."), p. 7. In late 1995, Jon Kirk replaced Jensen as Vice President of EEP, and plaintiff began reporting to Kirk. Matya Dep., pp. 80-81. Plaintiff also had an indirect reporting relationship with Chuck Sharp, Vice President of Finance for Dexter Electronic Materials Division ("DEM"), of which EEP was a sub-group. Jensen Dep., pp. 7-8. Ron Benham was the President of DEM. Jensen Dep., p. 138.
From 1992 until 1996, plaintiff suffered a series of personal problems. In October 1992, plaintiff's sister died after several months of hospitalization. Matya Deposition, pp. 141-43. In March 1993, plaintiff's mother died. Id., p. 145. In October 1993, plaintiff and his wife separated and ultimately were divorced in May 1995. Id., pp. 148-50. In November 1993, plaintiff's son was involved in a motor vehicle accident which resulted in the death of a pedestrian. A lawsuit was brought against both plaintiff and his son, which went to trial in 1996. Id., pp. 151-54. In October 1994, criminal proceedings were brought against plaintiff's youngest son for an assault against a foreign exchange student. Id., pp. 155-56. Plaintiff's superiors, including Dick Jensen, Chuck Sharp, and Ron Benham, were aware of these circumstances, and plaintiff was always given adequate time off to deal with these problems. Id., pp. 160-65.
By plaintiff's own admission, his personal problems made him negative, irritable, and distracted. Matya Dep., p. 184. In a memorandum to Jensen in October 1993, plaintiff was critical of Sharp, complaining that Sharp "is not in touch with the reality of what we do, what our needs are, or what's best for the business." Item 67, Exh. 31. In June 1994, plaintiff's performance evaluation was satisfactory, yet Jensen wrote that plaintiff "had some conflicts/disagreements with division finance" and suggested seminars to help "deal with people and personnel situations." Item 67, Exh. 16. In his May 1995 performance evaluation, plaintiff was given ratings of less than competent in nine categories, including the ability to meet commitments on schedule, manage conflict effectively, and solicit, listen, and respond to the opinions of others. Id., Exh. 18. At that time, Jensen noted that plaintiff displayed a negative attitude toward people and functions outside of the Olean facility, and that some working relationships had been strained. Id. In May 1995, Jensen counseled plaintiff regarding plaintiff's criticism of his superiors, and advised him to show a more supportive and cooperative attitude. Item 67, Exh. 125. This performance evaluation was below average, yet plaintiff nonetheless was given a $4,000 raise. Jensen Dep., p. 70. Jensen explained that the performance evaluation was intended to help plaintiff "correct any problems that he had or any deficiencies, and . . . not intended to be punitive . . . ." Jensen Dep., p. 71.
In November 1995, plaintiff was informed by Dick Jensen in a memorandum that his performance had not improved. Item 67, Exh. 26. Specifically, plaintiff was advised that he had failed to complete a working capital reduction plan for EEP and monthly reports for Chuck Sharp. Jensen also said that plaintiff's criticism of co-workers and management was undermining his credibility and compromising his effectiveness. Id. Plaintiff was viewed as difficult to work with and not a team player, and was told that he was portraying "a cynical, negative and analytically superficial point of view." Id. Additionally, Jensen informed plaintiff that his executive compensation bonus rate had been reduced as a result of his performance problems. Id.; Jensen Dep., p. 84. In order to remedy the situation and protect his position, plaintiff was asked to prepare an action plan describing how he intended to complete his tasks and change his operating style, including a plan to accomplish certain tasks required of him by Chuck Sharp. Id. The deadline for the action plan was extended from November 24 until December 1, 1995, because plaintiff was scheduled to undergo carpal tunnel surgery on his right hand. Matya Dep., pp. 536-37.
Kirk approved the plan on November 30, 1995, and Jensen approved the plan on December 1, 1995. Matya Dep., pp. 536-38. Plaintiff's proposed action plan, which included recommendations for re-engineering the finance function, was then reviewed by Sharp, who found the plan inadequate and superficial. Item 67, Exh. E, Deposition of Charles Sharp ("Sharp Dep."), pp. 98-99. Plaintiff was asked for a revised plan by January 5, 1996, but the deadline was extended until January 13, 1996 at plaintiff's request because he was scheduled to undergo carpal tunnel surgery on his left hand. Matya Dep., p. 540. Plaintiff did not submit a revised action plan at any time prior to his discharge. Matya Dep., p. 589.
As part of his general responsibilities, plaintiff was required to assist in preparing a quarterly forecast of EEP's financial performance, known as the 5Q forecast. Matya Dep., pp. 608-09. The EEP 5Q forecast was used by Sharp in preparing a 5Q forecast for DEM. Sharp Dep., pp. 112-13. In January 1996, Sharp realized that DEM's actual sales during 1995 were approximately $1.1 million short of projected sales, and thus earnings were approximately $900,000 short of the projected earnings set forth in the December 1995 5Q forecast for DEM. Sharp Dep., pp. 110-11. This inaccurate projection resulted in a drop in Dexter's stock price. Jensen Dep., pp. 145-46; Item 67, Exh. F, Deposition of Ronald Benham ("Benham Dep."), pp. 47-49. Benham made the decision to discharge both plaintiff and Sharp, as he felt they were responsible for the inaccurate 5Q forecast and had become unable to work together. He also felt that he needed to make an immediate change and could not wait for plaintiff to execute his action plan. Benham Dep., pp. 65-67. Plaintiff was informed of his discharge on January 22, 1996. Matya Dep., p. 8.
Prior to his discharge, on January 5, 1996, plaintiff received notification from the human resources director that William Plasse, an industrial psychologist, would be in Olean in late January. Item 83, Exh. 2, ¶ 7. Dr. Plasse was a consultant used by defendant as a resource for "management personnel for career development." Id., ¶ 8. Plaintiff scheduled an appointment with Dr. Plasse for January 23, 1996, intending to discuss his action plan, but was discharged on January 22, 1996. Id., ¶¶ 10-11. Dr. Plasse, now retired, stated in an affidavit that he first met with plaintiff on November 15, 1984. Item 83, Exh. 1, ¶ 5. While he believes he met with plaintiff on further occasions after that, Dr. Plasse stated that he has no records of those meetings. Id. Dr. Plasse further stated that on those occasions he met with Dexter employees, he prepared a report, reviewed his report with the employee, and sent a copy to the Vice President of the division in which the employee worked. Id., ¶ 6. Dr. Plasse stated that his primary purpose was to help with "career and individual development." Id. Plaintiff stated that he met with Dr. Plasse approximately six times during the course of his career at Dexter for purposes of "career development assessment." Matya Dep., p. 200. Plaintiff sought reports from Dr. Plasse as part of his discovery requests, but defendant was unable to locate or produce any reports other than a report regarding plaintiff from 1986. Id., Exh. 7.
In April 1995, plaintiff was referred to Margaret Balacki, a nurse practitioner in psychiatry, through the Employee Assistance Program at Dexter. Item 77, ¶¶ 4, 7. Plaintiff first saw Ms. Balacki on April 20, 1995. Id., ¶ 8. Ms. Balacki concluded that plaintiff was clinically depressed, and requested a prescription for Zoloft, an anti-depressant medication. Id., ¶¶ 9-10. Ms. Balacki saw plaintiff on April 27, May 11, and June 13, 1995, and again on January 30, 1996, after he was discharged from his employment. Id., ¶ 11.
Plaintiff admitted that he did not inform his superiors that he had been diagnosed with and was being treated for depression because he did not want to appear weak. Matya Dep., pp. 177, 180-83, 196. Plaintiff states that his superiors should have noticed the changes in him and realized that he was suffering from a mental impairment. Matya Dep., pp. 187-88. Plaintiff never asked for an accommodation from his superiors to assist him in dealing with his mental impairment. Matya Dep., p. 191.
Bernard Morris, Human Resources Manager for Dexter Corporation at the Olean location, stated in an affidavit that plaintiff was offered a severance package upon his discharge which required the signing of a release. Plaintiff refused to sign the release and was denied the benefits of the severance package, including outplacement counseling. Item 75, ¶ 13.
1. Motion for Summary Judgment
The standard of review on a motion for summary judgment is well established. Summary judgment will be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden of establishing the absence of a genuine factual dispute rests on the party seeking summary judgment. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). The movant may discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case on an issue on which the non-movant has the burden of proof. See Celotex, 477 U.S. at 323.
If the moving party meets its burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Rattner v. Netburn, 930 F.3d 204, 209 (2d Cir. 1991). The nonmoving party may not rest upon unsubstantiated allegations, conclusory assertions, or mere denials, but must set forth and establish specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). A metaphysical or other whimsical doubt concerning a material fact does not establish a genuine issue requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 (1986). If there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. Chambers, 43 F.3d at 37.
A. Plaintiff's ADA and NYSHRL Claims
ADA and NYSHRL claims are governed by the three-part analytical framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.), cert. denied, 537 U.S. 813 (2002) (McDonnell Douglas applied to ADA); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000) (McDonnell Douglas applied to NYSHRL). Under the McDonnell Douglas standard, a plaintiff bears the burden of proof and must ultimately establish, by a preponderance of the evidence: (1) membership in a protected group; (2) qualification for a position; (3) an adverse employment action; and (4) that the ...