The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiff Teresa Zerilli-Edelglass brings this action against defendants New York City Transit Authority ("NYCTA") and Manhattan and Bronx Surface Transit Operating Authority ("MaBSTOA") alleging: (1) retaliation based on her opposition to discriminatory practices under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000 et seq. ("Title VII"), New York State Executive Law, as amended, §§ 290 et seq. ("New York State Human Rights Law"), and New York City Human Rights Law, NYC Administrative Code §§ 8-101 et seq. ("New York City Human Rights Law") and (2) discrimination based on disability under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 et seq. ("ADA").
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, in opposition to summary judgment, requests that, pursuant to Rule 56(f), the motion be continued so that plaintiff can explore additional discovery, or, alternatively, that the motion be denied based on the current record. For the reasons detailed below, the defendants' motion is granted.
The following facts are undisputed unless otherwise noted. Plaintiff's claims arise from her employment with NYCTA and MaBSTOA. She argues that she was denied differential pay based on her disabilities and in retaliation for her success in an earlier employment discrimination case and her opposition to unlawful employment practices. Defendants provide differential pay to certain employees who are incapacitated as a result of an accidental injury or disease arising out of and in the course of employment. It equals the difference between an employee's Worker's Compensation payment and the employee's after-tax salary.
Plaintiff was a non-represented employee, meaning an employee without union representation, of defendants from 1988 to 1999. During her employment, plaintiff alleged that she was the victim of both gender discrimination and retaliatory conduct, for which she brought a successful suit against defendant NYCTA. Zerilli v. New York City Transit Auth., 973 F. Supp 311 (E.D.N.Y 1997), aff'd in part, rev'd in part, vacated in part, 162 F.3d 1149 (2d Cir. 1998), on remand,No. 94-CV-5495, 1998 WL 307019 (E.D.N.Y. May 1, 1998). She was awarded damages, back pay, and a promotion to a managerial position. Id.
In compliance with this decision, defendants offered plaintiff a managerial position on June 20, 1997. At that point, plaintiff had been absent from work since March 8, 1997 because of her mental illness. As a result, she failed to report to her new position. Because plaintiff no longer reported to work, she was terminated from her employment on July 27, 1999. In response, plaintiff filed a wrongful termination action against the defendant NYCTA, alleging discrimination because of gender and disability, and retaliation based on her earlier lawsuit. Zerilli-Edelglass v. New York City Transit Auth., No. 00-CV-6393, 2001 U.S. Dist. LEXIS 25378 (E.D.N.Y. Apr. 16, 2001), reconsideration denied, No. 00-CV-6393, 2001 U.S. Dist. LEXIS 25377 (E.D.N.Y. May 23, 2001), aff'd, 333 F.3d 74 (2d Cir. 2003). This suit was dismissed for failure to file an EEOC charge within 300 days of her receipt of notice of the termination decision. Id.
B. Application and Denial of Differential Pay
After she stopped working for defendants, plaintiff filed for worker's compensation and differential pay on July 11, 1997, claiming she was entitled to these benefits because of her mental illness.*fn1 From 1997 to 2003, the Worker's Compensation Board held hearings "once every three months or so," most of which plaintiff attended, to determine whether plaintiff's mental illness was work-related. In January 2003, plaintiff was awarded total, permanent worker's compensation, starting retroactively from 1997.
After being awarded worker's compensation, plaintiff contacted defendants and requested differential pay for the period of March 1997 to July 1999.*fn2 Defendants' policy on differential pay is outlined in Policy Instruction 5.3.1 and the Worker's Compensation Instruction Sheet. To be eligible for differential pay, the employee "must establish that the disability 'arose out of and occurred in the course of employment' and further, must establish compliance with the rules, regulations, and contractual requirements related to qualification for differential pay." Defendants' rules require that, when a employee sustains an injury while working, she "immediately notify" her supervisor or department unit. After receiving an accident report, the employee shall "as soon as possible" complete and sign the accident report and give it to her supervisor. Late filing "may result in a DELAY in COMPENSATION PAYMENTS AND DENIAL of DIFFERENTIAL PAY." (emphasis in the original). The supervisor shall then request that a medical examination of the employee be taken at a Medical Assessment Center ("MAC"). If unable to report to a MAC, the employee must notify the supervisor and provide medical documentation. Absent such proof, "benefits may be jeopardized."
By letter dated April 24, 2003, defendants denied plaintiff's differential pay claim on the grounds that: (1) she failed to report to the clinic as requested; (2) her illness was an aggravation of a pre-existing condition; and (3) the accident was reported late. At her deposition, Janet Holt, the Deputy Director of Workers' Compensation Division, NYCTA, affirmed that late reporting of accidents and failure to go to a MAC often result in denials of differential pay. She also expressed that persons with mental disorders are nonetheless required to report to a MAC and file an accident report the day they learn of their impairment.
After receiving the April 24, 2003 letter, plaintiff filed a notice of appeal, which was forwarded to William Jefferson, a Senior Hearing Officer at defendants' Office of Labor Relations. Mr. Jefferson is responsible for conducting Step III hearings as part of the Problem Resolution Procedure for non-represented employees. Upon receiving the notice of appeal, Mr. Jefferson sent plaintiff a letter dated May 6, 2003 informing her that a Problem Resolution Meeting had been scheduled for May 13, 2003 at defendants' offices in Brooklyn. The letter stated that, if the scheduled meeting date conflicted with plaintiff's personal schedule, she should contact Mr. Jefferson immediately so that the meeting could be rescheduled. In his declaration, Mr. Jefferson stated that hearings are "frequently rescheduled for the convenience of the employee." Jefferson Decl. ¶ 11. According to Ms. Holt, no one is ever denied a hearing.
By facsimile dated May 12, plaintiff sent the following response: I received your correspondence dated May 6, 2003 on Saturday, May 10 regarding a "Problem Resolution Meeting" on Tuesday, May 13 in Brooklyn.
I'm afraid that this is simply not doable. For one, even if it was, I was certainly not given ample notice. Beyond this, as I am no longer an employee of NYCT as well as one with a long, entangled legal history with them, a meeting conducted by its staff on its turf is a scenario far from that which I would consider to be fair and equitable-- especially without having my own legal representative present. Finally, I certainly do not see this matter as one requiring such debate. I don't doubt that you have been made aware of the circumstances surrounding my "case" and as such realize that this attempt at "problem resolution" is nothing more than another ploy and/or stall tactic.
As I stated clearly to Mr. Schoolman et al, this matter is relatively cut and dry where differential pay is concerned. I am certainly entitled to the same as any other similarly situated employee (re: title/worker's compensation) regardless ...