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Watson v. Arts & Entertainment Television Network

March 26, 2008

NAOMI WATSON, PLAINTIFF,
v.
ARTS & ENTERTAINMENT TELEVISION NETWORK, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

This is a pro se employment discrimination action in which plaintiff alleges that she was the victim of discrimination on the basis of a disability and her race, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112 -12117 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17, respectively. Plaintiff also alleges that she was the victim of illegal retaliation, although she does not specify whether her retaliation is asserted under the ADA, Title VII or both. The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).

Defendant moves for summary judgment dismissing the complaint (Docket Item 29). For the reasons set forth below, defendant's motion is granted in all respects, and the action is dismissed.

II. Facts

A. Plaintiff's Employment with Defendant

Most of the material, relevant facts are derived from defendant's submissions which, in substantial part, are not controverted.

Plaintiff, an African-American female, commenced working for defendant as an Administrative Assistant on or about February 14, 2000 (Declaration of Susan Werbe, dated May 4, 2007 ("Werbe Decl."), ¶ 2 and Ex. 2 thereto; Plaintiff's Supplement in Opposition to Defendant's Summary Judgment [Motion], Ex. 1). During her first six months on the job, plaintiff was frequently late for work, often absent from the office and left the office for personal appointments on short notice (Werbe Decl. ¶ 3). Defendant reviewed plaintiff's performance in August 2000, after her first six months of employment. The review contains a number of positive comments on plaintiff's performance, but also contains the following entry under the section seeking identification of areas that need improvement:

Naomi's hours are 10-6 and while she always puts in the required number of hours per day or more, she is frequently late. We need to count on Naomi to be here at 10 a.m. in order to answer phones and coordinate our activities. Since speaking to Naomi about this a couple of weeks ago she has been arriving on time.

We have also recently asked her to take her lunch hour between the hours of 12-2 p.m. and coordinate with Barbara Clews so the phones are covered. She has been doing this.

We'd like Naomi to organize her personal appointments to be before or after her workday as much as possible. If need be, these can be handled by taking a personal day which she did after we spoke about it.

It's helpful for Naomi to let us and Barbara know where she is when she's away from her desk for periods longer than 15 minutes. This could be done verbally or with a post-it on her computer screen. (Werbe Decl. Ex. 2 at AE 00107). The evaluation form used for this review provided four possible grades for an employee's overall performance: "Consistently Exceeds Standards," "Consistently Meets Standards," "Frequently Meets Standards" and "Needs Improvement to Meet Standards." Plaintiff was given the next-to-lowest rating, "Frequently Meets Standards" (Werbe Decl. Ex. 2 at AE 00108).

Despite the comments made to plaintiff in her six-month review, her attendance issues continued into the fall (Werbe Decl. ¶ 5 and Ex. 3 thereto). On October 2, 2000, plaintiff's supervisors gave plaintiff a written warning that she risked termination if she failed to correct her attendance and lateness issues:

Although we saw some improvements [immediately after your six-month review], your attendance and punctuality have worsened. To date you have [used] seven sick days in a period of seven months. Additionally, taking extended lunch hours and continuously arriving late directly affect your and the department's productivity and effectiveness.

Daily attendance and attention to balancing your time off within allotted vacation and personal time as well as reasonable sick time is critical to your performance. It is also important to be prompt and adhere to your established work hours of 10:00 am - 6:00 pm. Naomi, you need to focus on improving your attendance and punctuality. Coming in late and taking extended lunch hours (i.e. taking a 2 hour lunch to go to the credit union) is detrimental to all involved. Please communicate with us or HR if you have difficulties or extenuating circumstances that may prevent you from reaching this goal.

As always, management will be available to you to provide support in helping you achieve this goal, however, failure to improve your attendance and punctuality will result in disciplinary action up to and including termination. Until further notice, you are required to present a doctor's note when you return after calling in sick.

We will have a follow-up meeting in sixty days from now to examine your progress in this area. (Werbe Decl. Ex. 5).

After this memo was delivered to plaintiff, she sent an email to her supervisors advising them that her son suffered from asthma and that his health-related issues were the cause of her attendance problems (Werbe Decl. Ex. 6).

Later on in the day on October 2, 2000, plaintiff met with Maribel Aleman from defendant's Human Resources Department, and was counseled concerning her attendance and tardiness issues. On the following day, Aleman sent plaintiff an email in which she stated:

As a follow-up to our conversation yesterday afternoon please note that you are allowed to take vacation time during this period as long as it is approved in advance by your supervisors.

At this point you should take the opportunity to start on a positive note and successfully address the concerns we outlined in yesterday's meeting. You mentioned in our meeting that your son's condition was not, per se, the reason for your lateness but rather that you were not aware that coming in after 10 am was a problem. I urge you to establish a schedule where you can arrive at 10 am. If you have any difficulties with your son's condition, please advise us of it and, naturally, make up the time you may have lost in coming in late. If you are out sick, you will need to bring in a doctor's note as discussed.

Also, while we realize that you cannot always stay for overtime to complete your assignments, there might be occasions w[h]ere you will be expected to do so as the business needs may require. Again, a positive and team-oriented attitude will greatly benefit all involved.

Let's meet on Monday, October 16th (let me know what time is good for you) to follow up and discuss your progress. In the meantime, if you have any questions please feel free to call or stop by. (Werbe Decl. Ex. 7 (bold and italics in original)).

On October 4, 2000, plaintiff sent a memo to Mr. Charles Maday, an individual for whom she had apparently done some work, seeking to be assigned to new supervisors (Declaration of Maribel Aleman, dated May 4, 2007 ("Aleman Decl."), Ex. 1). Plaintiff's request was granted, and she was reassigned to work for Charles LaPolla and Carl Lindahl (Declaration of Mark Young, Esq., dated May 4, 2007 ("Young Decl."), Ex. 4 at 59-60; Declara- tion of Rosalind Clay Carter, dated May 4, 2007 ("Carter Decl.") ¶ 3).

Despite the reassignment, however, plaintiff's attendance issues persisted. The parties' submissions establish that between October 9, 2000 through her termination on January 11, 2001, plaintiff was absent for all or part of 23 days, as specified below. The absences for which plaintiff submitted documentary evidence of a medical appointment are indicated.

10-10-00 4 hours out sick Appointment with Orthopedist at 9:00 a.m.; documentary evidence submitted.

10-17-00 3 hours out sick Appointment with orthopedist cancelled by orthopedist on day of appointment; documentary evidence submitted.

10-23-00 Sick day Medical note submitted.

10-24-00 1.5 hours out sick Medical note submitted.

10-27-00 Vacation day 10-30-00 Vacation Day 11-07-00 3 hours out sick No medical note submitted.

11-14-00 Sick Day Appointment with orthopedist at 12:00 noon; documentary evidence submitted.

11-28-00 Sick Day Appointment with orthopedist at 12:00 noon; documentary evidence submitted.

12-05-00 3.5 hours out sick No medical note submitted.

12-11-00 5 hours out sick Contemporaneous email from plaintiff indicating MRI scheduled for 12-11-00; no documentation from MRI provider.

12-12-00 3 hours out sick No medical note submitted.

12-14-00 3.5 hours vacation time 12-19-00 3 hours out sick Appointment with orthopedist at 12:00 noon; documentary evidence submitted.

12-20-00 Sick Day No medical note submitted.

12-21-00 Sick Day No medical note submitted.

12-27-00 Sick Day No medical note submitted 12-28-00 Sick Day Appointment with physical therapist at unspecified time of unspecified duration; documentary evidence submitted.

12-29-00 Sick Day Appointment with physical therapist at unspecified time of unspecified duration; documentary evidence submitted.

01-02-01 Sick Day No medical note submitted.

Appointment with orthopedist 01-03-01 Sick Day at 11:00 a.m.; documentary evidence submitted.

01-08-01 1 hr Personal Time 01-09-01 1.5 hrs Personal Time (Carter Decl. Ex. 1; Young Decl. Ex. 3).

Plaintiff had fallen down a flight of stairs at work on October 3, 2000 (Young Decl., Ex. 2 at 25; Exs. 17 & 18), and claimed that many of her absences were the result of the injuries she sustained in this fall. Defendant, however, notes that although plaintiff's health care providers had office hours starting at 8:00 a.m. (Young Decl. Exs. 6 & 7), plaintiff consistently scheduled her appointments later in the day (see ...


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