The opinion of the court was delivered by: Garaufis, United States District Judge
Pro se plaintiff Doris D. Crawford ("Plaintiff" or "Crawford") brings this action claiming that defendant New York Life Insurance Company ("New York Life" or "Defendant") violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Americans with Disabilities Act, 29 U.S.C. § 706 et seq. ("ADA"). Pursuant to Federal Rule of Civil Procedure 56, New York Life moves to dismiss Crawford's Title VII and ADA claims. For the reasons set forth below, Defendant's motion is GRANTED.
Plaintiff first became employed by New York Life in November 2000 on a temporary basis, as a Secretary in Defendant's Office of General Counsel ("OGC"). (Def's 56.1 Statement ¶ 6; Deposition of Crawford, dated April 21, 2005 ("Crawford Dep.") at 42.) On February 1, 2001, Defendant hired Crawford as a full-time secretary in the OGC, working for different attorneys in the office until March 2001, after which she supported the same three attorneys. (Id. ¶ 7; Crawford Dep. at 166.) Defendant is a Jehovah's Witness, and received permission from New York Life to leave work at 5:00 p.m. on Tuesdays and Thursdays to attend religious meetings. (Id. ¶ 8; Crawford Dep. at 131-32.)
Crawford alleges that she suffers from irritable bowel syndrome ("IBS"). (Crawford Dep. at 132-33.) To treat her IBS, she saw one doctor for eight months in 2003, and participated in two IBS research clinical trials, but had a bad reaction to medication prescribed for her. (Id. at 157-58.) Crawford testified that while she worked at New York Life, she had "[d]iarrhea . . . throughout the day in early stage, besides that I had the rashes, I had headaches, I had palpitations, I had breathlessness, I had panic . . . . If I was at work, I was in the bathroom a lot." (Id. at 136-37.) She testified regarding how IBS impacted her ability to work at New York Life as "detain[ing me] in the bathroom, it would limit where I was, but . . . I could do what I needed to do. It would just take me longer to do things and I just wasn't as available." (Id. at 138.) She also testified that while at New York Life, "it was stressful to be around people[.]" (Id. at 137.)
Crawford testified that her symptoms have improved over time, including diarrhea once a month, constipation three times a month, [stomach cramps] one to two days per week, with daily flatulence. (Id. at 134.) When asked how IBS affects her now on a daily basis, Crawford testified:
It's more mental and emotional . . . . The constant awareness of it and being in the presence of others. So more of a social isolation, I guess. So that I have to carry certain things to feel at least that I am not as offensive to be around. Carrying personal sprays and things of that nature and I use them frequently . . . . There are places or people that I tend not to want to be around because if it's somebody new, I tend to not want to be in that environment. And I have to limit pretty much my time socially. (Id. at 135-36.) Crawford takes no medicine and follows no special diet or other regimen to control her IBS. (Id. at 159-60.)
During her employment at New York Life, Crawford brought to the attention of LaDonna Carr ("Carr"), her supervisor, a number of grievances. In March 2001, Crawford complained that she was earning $500 less per annum than what the employment packet indicated she would earn. (Id. at 206, 209.) She also complained to Carr regarding the treatment of her by employees and supervisors at New York Life. She first complained about "gossip" that co-employees spread about her using electronic mail. (Id. at 210.) She said that two other secretaries, "Janet," and "Anesta," talked about her using the pronoun "he" to disguise their intentions. (Id. at 211, 213.) When she asked technical support for an electronic mail account to communicate with the attorneys she supported, the technical support employee "was very smug," and responded "[y]ou will get it when I give it to you." (Id. at 169.) On another occasion, a male employee walked past her, looked at her, and made a comment to another male employee about "bra size," and laughed. (Id. at 173-74.) Plaintiff also overheard the same employee state about female Jehovah's Witness members who live in his neighborhood that they "let themselves go," to a group with other people in the lunchroom. (Id. at 175.) In another instance, she suggested celebrating New York Life's hiring her with co-workers with "bubbly," and she overheard a co-worker state that "this place is going to the dogs." (Id. at 182.) She also complained that her co-worker "Anesta" commented that she (Anesta) "looked good in her clothes and referring to her weight and size," from which Plaintiff inferred that Anesta was insinuating "that my clothes were tight and I needed to lose weight." (Id. at 191.)
Crawford also informed Carr about her IBS, and complained about comments and gestures made by co-workers regarding Plaintiff's IBS symptoms. During her tenure at New York Life, co-workers publicly commented on smells emanating from Plaintiff's area due to IBS-caused flatus. One co-worker would hold her nose and say "it stinks" as she walked past Plaintiff's area (id. at 194); others would make similar comments, and a maintenance employee told her that her work area was moved close to the restroom "because you stink." (Id. at 195.)
She also stated that employees would use other bathrooms because of the smells she produced because of IBS. (Id. at 199.) Plaintiff acknowledged that the area smelled of flatus because "I had gas 24/7." (Id. at 202.)
New York Life has a sick policy, of which Plaintiff was aware, allowing only seven days of absences per year. (Id. at 236.) Plaintiff had a number of doctors appointments beginning in April 2001 that led her to take time away from the office. (Id. at 227.) In May or June 2001 Plaintiff was met with a supervisor, Carol O'Driscoll, warning her that continued time away from work during work hours could result in dismissal. (Id.) On July 23, 2001, Plaintiff failed to call her employer ahead of time before reporting late to work. (Id. at 240.) On August 13, 2001, Plaintiff was provided a written "final warning" informing her that she was over the acceptable number of absences and that further absences would result in her dismissal. (Id. at 236.) On September 5, 2001, Plaintiff again arrived late without previously informing the employer. (Id. at 250-51.) On September 14, 17, and 18, 2001, Plaintiff again took sick leave because "instead of things improving, people were acting the same . . . . it was still a hostile work environment under the circumstances." (Id. at 259.) Plaintiff was terminated on September 18, 2001 for absences and latenesses in violation of New York Life's absence policy. (Id. at 260.)
Following Plaintiff's termination from New York Life, Crawford filed a complaint with the New York State Division of Human Rights ("NYDHR") on November 5, 2001. On February 19, 2004, Crawford received a Right to Sue letter from the Equal Employment Opportunity Commission. Her complaint, which alleges violations of Title VII and the ADA, and included as defendants New York Life and individual supervisors, was received by this court's pro se office on May 3, 2004.
On October 19, 2004, I dismissed Plaintiff's complaint as to individual defendants, as individual employees are not "employers" under Title VII and the ADA, and found that Plaintiff's complaint failed to allege sufficient facts regarding her IBS for this court to conclude that she suffered a substantial impairment on a major life activity that would permit suit under the ADA. (See Memorandum and Order, dated Oct. 19, 2004 at 5 (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998)). However, as Plaintiff is pro se, I granted her leave to amend her complaint, which she did on November 22, 2004.
Plaintiff's amended complaint alleges workplace harassment, retaliation, and discrimination based on her gender and IBS in violation of Title VII and the ADA. (Am. Compl. at 2-3.) Defendant now moves for summary judgment on Plaintiff's remaining Title VII and ADA claims.
Summary judgment is appropriate when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law, i.e., where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Fed. R. Civ. P. 56(c) and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) "A fact is material for these purposes if it might affect the outcome of the suit under the governing law. An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party bears the burden of establishing the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the moving party has met this burden, the non-moving party has the burden of "set[ting] forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
"The evidence of the party opposing summary judgment is 'to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). "Moreover, the pleadings of a pro se plaintiff must be read liberally and should be interpreted 'to raise the strongest arguments that they suggest.'" Id. (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "[t]he non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118,121 (2d Cir. 1990) (internal quotations and citations omitted); see Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the opponent can create a genuine ...