The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
On July 15, 2005, Plaintiff Christine Duttweiller ("Plaintiff") filed this labor and disability discrimination action, pursuant to the Labor Management Relations Act of 1947, 29 U.S.C. § 141 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq., and the New York state human rights law, arising out of incidents leading up to and including Plaintiff's termination from employment with the Eagle Defendants. On July 1, 2007, Plaintiff filed an Amended Complaint, voluntarily discontinuing her claims against Upstate Building Maintenance Companies, Inc., and Eagle Janitorial Services, Inc. (Dkt. No. 60.) As a result, currently remaining in this action are Plaintiff's claims against (1) Eagle Janitorial, Inc., (2) Eagle Building Services, Inc., and (3) Local 200 United Service Employees International Union, AFL-CIO.
On July 15, 2008, Defendant Union filed a motion for summary judgment. (Dkt. No. 87.) On August 15, 2008, Defendant Eagle requested leave to join in the motion of Defendant Union. (Dkt. No. 92.) That same day, Defendant Eagle's request was denied by Chief Judge Norman A. Mordue, who directed Defendant Eagle to file separate motion papers on behalf of Defendant Eagle. (Dkt. No. 93.) However, subsequently, Defendant Eagle did not file such motion papers. (See generally Docket Sheet.) On September 2, 2008, Plaintiff opposed Defendant Union's motion, after being granted an extension of time by which to do so. (Dkt. No. 94.) On September 8, 2008, Defendant Union filed its reply. (Dkt. No. 95.) That same day, Defendant Union filed a motion to strike (1) portions of Plaintiff's response affidavit, (2) the "neuropsychological evaluation" submitted by Plaintiff, and (3) the entire depositions of Stark, Gravina, Dennis and Loftus, as well as the records of Dr. Bakay and Dr. Bhagavatula. (Dkt. No. 96.)
After carefully considering the parties' motion papers, and for the reasons set forth below, Defendant Union's motion for summary judgment is granted; Plaintiff's claims against Defendant Union are dismissed in their entirety; Defendant Union's motion to strike is granted in part and denied in part; and Defendant Eagle is granted leave to promptly file a motion for summary judgment.
I. RELEVANT LEGAL STANDARD
For the sake of brevity, the Court will not repeat the well-known legal standard governing motions for summary judgment pursuant to Fed. R. Civ. P. 56. Rather, the Court will refer the parties to its decision in Proctor v. Kelly, 05-CV-0692, 2008 WL 5243925, at *3-4 (N.D.N.Y. Dec. 16, 2008) (Suddaby, J.). However, the Court will note that it is mindful of the fact that "[d]istrict courts must be cautious when granting summary judgment in employment discrimination cases because the employer's intent is often at issue." Stone v. Manhattan and Bronx Surface Transit Operating Auth., 539 F. Supp.2d 669, 676 (E.D.N.Y. 2008) (citation omitted). "Because a victim of discrimination is seldom able to prove h[er] claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence, where there are issues going to a defendant's . . . intent and state of mind, summary judgment is ordinarily inappropriate." Manhattan and Bronx Surface Transit Operating Authority, 539 F. Supp.2d at 676 (citation omitted). "However, the 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." Id. (citation omitted). "Summary judgment is therefore still appropriate even in the fact-intensive context of discrimination cases where the standards of Rule 56 have been met." Id. (citations and internal quotations omitted).
A. Plaintiff's Rule 7.1 Response and Defendant Union's Motion to Strike
Before proceeding to a recitation of the undisputed material facts on Defendant Union's motion, the Court must address certain issues raised by (1) Plaintiff's Rule 7.1 Response to Defendant Union's Rule 7.1 Statement of Material Facts, and (2) Defendant's motion to strike.
In its motion for summary judgment, Defendant Union filed a Rule 7.1 Statement of Material Facts, consisting of 125 paragraphs, and accurately cited to the admissible record evidence. Subsequently, Plaintiff's counsel submitted a Rule 7.1 Response, admitting or denying the factual assertions in each of Defendant's paragraphs. More specifically, Plaintiff's Rule 7.1 Response contained 64 denials of factual assertions in Defendant's Rule 7.1 Statement. For each of these 64 denials, Plaintiff provided a record citation to her affidavit submitted in opposition of Defendant's motion for summary judgment (hereinafter "the Duttweiller Affidavit").
There are four main defects in the Duttweiller Affidavit.*fn1 First, approximately 47 of the paragraphs of the Duttweiller Affidavit contain arguments, in violation of Local Rule 7.1(a)(2). For example, on page 16, the Duttweiller Affidavit states as follows: "Denied by inference [that Plaintiff never told the Employer that she had any particular disability]. She never had a diagnosis to give the employer because they fired her in breach of the contract before a diagnosis was obtained as stated herein despite a mediation agreement that they would not." Similarly, on page 17, the Duttweiller Affidavit states as follows:
Denied [that progressive discipline is often used in industrial labor relations to help an employee correct his or her behavior]. Progressive discipline is not relevant to discharge under the union contract unless and until the alleged violation rises to the level of for cause.
No amount of accumulated arbitrary and/or discriminatory or petty discipline rises to the level of for[-]cause firing.
As progressive discipline is not included under the contract[,] it may not be the basis for a for[-]cause firing.
The employer is ignoring other discipline methods than firing that might be allowed under the contract and are more effective.
As a result, those portions of the Duttweiller Affidavit containing arguments are stricken from the record.*fn2
Second, approximately 46 of the paragraphs of the Duttweiller Affidavit contain statements that are expressed in the third person point of view, rather than in the first person point of view. For example, on page 16, the Duttweiller Affidavit states as follows: "I am meticulous and conscientious and generally completed my work as assigned. The Plaintiff denies the work plenty and states that there are only three reported incidents in which she did not finish my work and these were not my fault." Similarly, on page 21, the Duttweiller Affidavit states as follows: "She was in the process of obtaining [a medical diagnosis] and this was known to the union."
Ordinarily, this sort of grammatical error might be academic. However, when the error occurs in an affidavit--which attempts to serve as the sole record evidence opposing a motion for summary judgment--the error becomes highly material. Specifically, by being narrated in the third-person perspective or voice (and not the first-person perspective or voice), the Duttweiller Affidavit clearly demonstrates that it was drafted by Plaintiff's counsel, not Plaintiff, and that it was not even closely reviewed by Plaintiff so as to catch such obvious errors.
Plaintiff is reminded that Rule 56 of the Federal Rules of Civil Procedure states that "[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1); see, e.g., Vandeventer v. Wabash Nat. Corp., 867 F. Supp. 790, 798 (N.D. Ind. 1994) (affidavit written in voice of another witness insufficient to show personal knowledge); Texas Dept. of Pub. Safety v. Rodruguez, 953 S.W.2d 362, 363-64 (Tex. App. 1997) (affidavit narrated in third-person voice insufficient to show personal knowledge); cf. Prod. Liab. Ins. Agency v. Crum & Forester Ins. Co., 682 F.2d 660, 662 (7th Cir. 1982) ("Conclusional denials . . . in affidavits obviously drafted by lawyers are entitled to little weight in deciding whether to grant [a] . . . motion for summary judgment."). As a result, those portions of the Duttweiller Affidavit narrated in the third-person perspective or voice are stricken from the record.
Third, approximately 14 of the paragraphs of the Duttweiller Affidavit contain statements that, regardless of whether or not they were written in the third-person, still are clearly not made on Plaintiff's personal knowledge. For example, on page 19, the Duttweiller Affidavit denies that the Employer received complaints about Plaintiff's work performance from LeMoyne College audits, without indicating how she was in a position to know of the Employer's receipt of those complaints at the time in question (regardless of whether or not the audits were later destroyed). Similarly, on page 28, Plaintiff denies that the Union asked a certain question of the Employer at a mediation, but acknowledges that she has no recollection of whether that question was or was not asked. Again, statements in Plaintiff's affidavit not made on Plaintiff's personal knowledge are insufficient to oppose Defendant's motion for summary judgment. As a result, these portions of the Duttweiller Affidavit narrated in the first-person perspective or voice but not made on Plaintiff's personal knowledge must be also stricken from the record.
Fourth, approximately 33 of the paragraphs of the Duttweiller Affidavit contain factual assertions that attempt to contradict, in part or in whole, sworn testimony previously given by Plaintiff during her deposition. The Court says "attempt to contradict," because the vast majority of these factual assertions (1) are wholly immaterial to Defendant's factual assertions, (2) are only partially responsive to Defendant's factual assertions, and/or (3) in fact admit Defendant's factual assertions. Among the few attempted contradictions that are actually material to Defendant's factual assertions are on page 26 of the Duttweiller Affidavit. On that page, Plaintiff denies Defendant's factual assertion that "Plaintiff was not sure [during December 2004] who [harassed her by moving her things], and thought it may be college students, or was not sure which co-worker, if any, may have [harassed her]." Specifically, Plaintiff asserts, "Further reflection indicates that the students had left on break and therefore [it] must be a co worker."
"It is well-settled that a party may not defeat . . . a motion [for summary judgment] by submitting an affidavit that disputes [or contradicts] his prior sworn testimony." Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) (citation omitted); Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998) (citation omitted). The reason for this rule is that permitting a non-movant to oppose a motion for summary judgment in this way would "diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). If Plaintiff wished to contradict her own deposition testimony, the permissible procedural method would have been to either (1) clarify her testimony on cross-examination by her own counsel, pursuant to Fed. R. Civ. P. 30(c)(1), or (2) within 30 days after the deposition transcript becomes available, sign a statement listing the changes to that transcript, and the reasons for making those changes, pursuant to Fed. R. Civ. P. 30(e)(1)(B). As a result, these portions of the Duttweiller Affidavit that attempt to contradict (or that do contradict) her previous deposition testimony are also stricken from the record.
These four defects that plague the Duttweiller Affidavit essentially render the Affidavit without legal effect. As explained above, the Court has determined, in its discretion, that the vast majority of the Duttweiller Affidavit should be stricken for the reasons just described. See Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999), abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000). The result of this determination is that only a few paragraphs of Plaintiff's Rule 7.1 Response (which are not fatally flawed due to any of the four above-mentioned defects) may be deemed to be (barely) sufficient to successfully controvert various assertions in Defendant's Rule 7.1 Statement. Those sufficient paragraphs are as follows: (1) Paragraph Number 1 (to the extent it seeks to controvert the implication that Plaintiff was terminated on January 18, 2005); (2) Paragraph Number 28; (3) Paragraph Number 42 (to the extent it seeks to controvert the implication that the Employer did not have "enough" management personnel to watch every employee on the Le Moyne campus during the time in question); (4) Paragraph Number 47 (to the extent it seeks to assert that Plaintiff does not know of such a policy based on her personal knowledge); (5) Paragraph Number 52 (to the extent it seeks to assert that Plaintiff documented the criticisms but does not currently possess that documentation); and (6) Paragraph Number 83 (to the extent it seeks to imply that information given by Plaintiff to the Employer about "Debbie" could be, and was, imputed to the Union).
Finally, the Court is mindful of the technical errors that exist in the "neuropsychological evaluation" submitted by Plaintiff, as well as the depositions of Stark, Gravina, Dennis and Loftus and the records of Dr. Bakay and Dr. Bhagavatula. The Court is also mindful that, generally, courts may not, when deciding a motion for summary judgment, consider evidence that would be inadmissible at trial. Rubens v. Mason, 387 F.3d 183, 188 (2d Cir. 2004). However, despite the procedural errors, the Court should afford Plaintiff herself special solicitude, due to her status as a civil rights litigant. Moreover, simply because a neuropsychological evaluation has not been authenticated does not mean that it could not be admitted at trial. Similarly, simply because certain depositions or records do not comply with the technical requirements of the Federal Rules of Civil Procedure does not mean that they could not be admitted at trial. For all of these reasons, the Court denies Defendant Union's motion to strike to the extent its seeks to strike the neuropsychological evaluation submitted by Plaintiff, and the depositions and medical records produced by Dr. Bakay and Dr. Bhagavatula.
B. Undisputed Material Facts
Between May 14, 2000, and January 19, 2005, Plaintiff was an employee of Defendant Eagle Janitorial Services (hereinafter "Eagle" or "Employer"). In addition, between 1988 and 2000, Plaintiff was employed by Eagle's predecessors at LeMoyne College. During that 1988 to 2005 time period, Plaintiff performed janitorial services at LeMoyne College. Also during that time, Plaintiff was a member of Defendant Local 200 United Service Employees International Union (hereinafter "Union").*fn3
From at least 2003 until the end of her employment with Eagle, Plaintiff's Union representative was Robert Loftus. While Plaintiff worked for Eagle, her immediate supervisor was Steve Gravina, whose supervisor was Duncan Stark, Vice President of the Employer.
In June 2003, Loftus met with Plaintiff concerning some problems she said she was having at work. Sometime after the meeting, Loftus spoke with the Employer in order to alleviate some of the communication problems that Plaintiff faced. Loftus asked the Employer to write out a list of Plaintiff's job duties. As a result, Gravina wrote out a list of Plaintiff's job duties in June 2003.
In that same month, Plaintiff received her first discipline from the Employer, in the form of a verbal warning, for failure to comply with the written instructions. Specifically, the instructions indicated that Plaintiff was not to enter certain occupied suites prior to 9:30 a.m. because male athletes who occupied those suites were to leave at that time. However, Plaintiff informed her supervisor that she attempted to enter the suites "to start cleaning" them before 9:30 a.m.
Loftus filed a grievance for Plaintiff based on this discipline, which resulted in mediation pursuant to the procedures in the CBA in March or April 2004. In the interim, sometime in the Fall of 2003, Plaintiff contacted Loftus to report to him accusations made by the Employer against her. These accusations included statements by supervisors Stark and Gravina that Plaintiff was not doing her work, as well as other statements that were critical of Plaintiff's work. In response, Loftus told Plaintiff to document the events. According to Plaintiff, because she contacted Loftus every time the accusations occurred, she did not, in addition, always document the accusations.
In January 2004, Loftus met with Plaintiff to tell her that the Employer was intending to discipline her for performance problems on the job. Loftus suggested to Plaintiff that a job coach come to Plaintiff's job to witness what the Employer was doing and help Plaintiff on the job. Plaintiff confided in Loftus that she suffered a brain injury when she was hit by a car as a child and she did not know what the extent of that injury was or how it could be affecting her job. After their conversation, Loftus called the New York State Division of Human Rights ("Human Rights") to find out what they could suggest to try to help Plaintiff. Human Rights suggested that VESID, a New York State vocational rehabilitation agency, may be able to help Plaintiff. Loftus also suggested to Plaintiff that a "job coach" through VESID may help her, and Plaintiff agreed that it would be a good idea.
In March or April, 2004, Loftus, Stark, Gravina, and Plaintiff attended a mediation with Mediator Tim Gorman concerning Plaintiff's job performance that was held as a result of the Union filing Plaintiff's grievance. During the mediation, the mediator also suggested that Plaintiff would benefit from the VESID program and a job coach could be provided through that agency. Plaintiff agreed in the mediation that it would be important to have a job coach. Loftus and the mediator gave Plaintiff a booklet about VESID during the mediation.
The Union presented the VESID program and a job coach to the Employer as a way in which the Employer and Union could help Plaintiff so that the Employer would not have to terminate her. The Union obtained permission from the Employer to have a job coach assist Plaintiff. However, Loftus did not tell the Employer that Plaintiff had a brain injury because Plaintiff had confided in him and asked him to keep that information confidential.
According to Loftus, the Employer was concerned with Plaintiff's confusion in following work orders. According to Stark, Plaintiff had difficulty managing her time, "putting more focus on things that were less of a priority than to areas that needed to be completed."
On or about April 27, 2004, Loftus made an appointment for Plaintiff at VESID, told her when it would take place, and accompanied her to the VESID office at the State Office Building. Plaintiff attended an orientation meeting with Loftus at VESID that day and received an application for vocational rehabilitation services. However, Plaintiff did not give the application to the VESID employees that day because she did not fill out the questions that said, "What is your disability?" and "Describe how your disability limits your ability to work." VESID employees told Plaintiff that she needed to obtain a medical diagnosis and some statement from her doctor to proceed with the VESID program. Plaintiff then started looking into whether she had a disability.
On July 22, 2004, the Employer issued Plaintiff a first written "Employee Counseling Notice" for failure to follow procedures and violation of company policies. Gravina stated that on July 21, 2004, Plaintiff called her supervisor's voice mail to say she had lost her access card for the building and then remained in the building after her shift to look for it without her supervisor's permission. According to Gravina, Plaintiff had been told on numerous occasions not to be in the buildings on campus after her scheduled shift end, that she was not to return to buildings without permission, and that she must complete anything she needs to do before she was "off the clock." However, according to Plaintiff, she had routinely obtained permission in the past to remain in the building after hours if she had a good reason.
That same day, Plaintiff contacted the Union and spoke with Loftus. In that conversation, Loftus gave Plaintiff emotional support and was generally supportive of Plaintiff. As a result of that discipline, Plaintiff, Loftus, and the Employer attended mediation, pursuant to the procedures of the CBA. After that mediation, Loftus asked Plaintiff about her progress toward the VESID program. Plaintiff told Loftus that she could not get a statement of disability until she had the tests and she did not yet have a doctor who could test her. Plaintiff did not tell Loftus that she was trying to be tested for ADD. Instead, Plaintiff told Loftus that she had a "weakness where she got distracted easily."
Subsequently, Gravina and Stark were dissatisfied with Plaintiff's work, telling her on different occasions that her work was "terrible," the bathrooms "were really filthy," and "if anyone cleaned them right they shouldn't be that filthy," and she was not in the place she was supposed to be while working. Plaintiff continued to call Loftus about these criticisms she was receiving from her supervisors. However, Plaintiff did not document all of these verbal criticisms as Loftus had instructed her to do.
On August 31, 2004, the Employer issued Plaintiff a second written warning or "Employee Counseling Notice," for infractions that took place on August 26 and August 30, 2004. That notice cited Plaintiff for poor work performance, failure to follow procedures, and violation of Company policies. According to Stark, on August 26, 2004, Plaintiff called from the workplace to say that she forgot to put the trash cart in the janitor's closet as requested by her supervisor, and that she had locked the closet and that she left her personal belongings in the building. According to Plaintiff, after she spoke with Stark, he told her to leave the cart out. The notice also stated that on August 30, 2004, two minutes before her shift ended, Plaintiff called her supervisor (Gravina) to say that her watch was wrong and that she had not completed her duties. Plaintiff admitted that the events described in the counseling notice were true in that she knew she was not supposed to go back into the buildings after her shift ended and that she did not clean two suites because her watch was wrong.
Plaintiff called the Union and spoke to Bob Loftus about the second written warning shortly after receiving it. Loftus told Plaintiff to document the events; however, Plaintiff did not document these particular events. Loftus also told Plaintiff that he was going to grieve the August discipline.
Loftus filed a grievance and requested mediation from the New York State Mediation Board on the September 1, 2004 discipline, pursuant to the procedures of the CBA. As a result of the Union's request, Loftus, Stark, Gravina, and Plaintiff attended a mediation concerning the discipline conducted by Mediator Tim Gorman. During the mediation, Plaintiff, the Union and the Employer agreed that Plaintiff would get some type of medical notification to the Employer concerning her medical condition, even if it was from a family physician. In return, the Employer agreed that it would hold off disciplining Plaintiff for any other disciplinary matters. Nonetheless, Plaintiff never obtained a medical diagnosis or statement from a doctor that she was being tested or seeking professional help prior to being terminated in January 2005.
According to the Employer, between September 7, and October 7, 2004, there were numerous instances in which the Employer could have disciplined Plaintiff for poor work performance or failure to follow policies or procedures, yet refrained from doing so because of the agreement it had with the Union that it would hold off disciplining Plaintiff if she produced proof that she was seeing a medical professional. Employer further asserts that Plaintiff called management numerous times unnecessarily, more times than any other employee, and did not follow instructions, which disrupted management's day, wasted their time, and caused her not to complete her work. Plaintiff does not deny that her work was criticized, or that she made the phone calls to management, but asserts that the calls were necessary and her work was satisfactory.
Plaintiff called Loftus at least weekly throughout the Fall of 2004 about problems she had on the job. During those phone calls, Loftus told Plaintiff that he was receiving calls from the Employer saying that her work was not acceptable, and asked Plaintiff about how her medical documentation for VESID was coming. Loftus told Plaintiff that the Employer was going to continue writing her up, which is why they needed to get a job coach for her. ...