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Ward v. Empire Vision Centers

February 18, 2010


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff Ernestine Ward ("Ward") brings this action, pro se, against her former employer, Empire Vision Centers ("Empire"), alleging racial discrimination, racial and sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e et seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §§290 et seq., as well as age-based discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA") and NYHRL. Discovery is now completed, and Empire moves for summary judgment dismissing the plaintiffs' claims (Dkt. #54). For the reasons that follow, Empire's motion for summary judgment is granted, and the initial and supplemental complaints are dismissed.


Empire is a corporation which operates walk-in vision and eye care centers. Ward was employed by Empire as an Optical Assistant at its Corning, New York store from November 27, 2006 to December 26, 2007. As an Optical Assistant, Ward's duties included greeting customers, answering phones, scheduling patient appointments and maintaining patient files, processing and verifying patient insurance information, and various other duties related to the opening, closing and maintenance of the store itself. She was hired and directly supervised by Corning store manager Sherry Ionta ("Ionta"), and later by Ionta's successor, Brian Burbank ("Burbank").

Empire describes Ward's employment as problematic. Ionta testified that she was concerned with Ward's slow performance, inability to comprehend key concepts, and constant "surveillance" of her co-workers, who complained that Ward was making daily notes regarding their break times and other on-the-job observations. Burbank testified that after he took over for Ionta on July 31, 2007, he observed interpersonal difficulties between Ward and her co-workers. Ward's co-workers complained to Burbank that Ward was constantly taking notes regarding their activities, that they felt she frequently made mistakes without consequence, and that their frustration with Ward and the resulting low morale had become so significant that some were considering leaving their employment with Empire. Burbank also observed that Ward had difficulty processing and completing patient paperwork, left patients on hold for inappropriately long periods, and failed to follow internal policies and procedures. Burbank counseled Ward concerning these issues. In light of her ongoing performance difficulties, Ward was asked in October 2007 to retake the "new hire" training session she had attended when she was first hired.

Ward does not deny the bulk of the performance issues described by Empire, and admits that Empire issued her three separate written warnings concerning her behavior and performance deficiencies. Specifically, on September 5, 2007, Burbank issued Ward a warning for insubordination after he determined that she had lied about using Empire's fax machine for personal business, which was against company policy. On November 6, 2007, Burbank issued Ward a second written warning for insubordination and unsatisfactory performance, after Ward failed to tell a patient the correct appointment time, and failed to properly complete charts for two patients prior to their appointments. On November 20, 2007, Ward was issued a final written warning for unsatisfactory work performance, insubordination, and violation of company policies, based upon five separate incidents including failure to take direction from her manager, failure to properly complete documentation, failure to properly cash out patients, and failure to pull patient charts for appointments.

Beginning December 4, 2007, Ward stopped reporting to work, claiming that she was disabled due to stress. Empire sent Ward disability forms in order to verify the basis for her absence. Ward did not respond to Empire's request for medical information, and formally resigned her position on December 26, 2007.

During her employment with Empire, Ward filed five complaints with the New York State Division of Human Rights ("NYSDHR") claiming discrimination, harassment and retaliation. The NYSDHR investigated each of the complaints and made a finding of "no probable cause." Ward filed the instant action on April 28, 2008, after receiving a "right to sue" letter from the Equal Employment Opportunity Commission.


I. Summary Judgment in Discrimination Cases

Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). While courts should be cautious about granting summary judgment in cases where motive, intent or state of mind are at issue, a typical facet of discrimination actions, see Montana v. First Federal Savings and Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir. 1989), "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000), quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) (trial courts should not "treat discrimination differently from other ultimate questions of fact").

When considering a motion for summary judgment, the Court must draw inferences from underlying facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Where the party opposing summary judgment is proceeding pro se, the Court must "read the pleadings ... liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.1999). Nevertheless, "proceeding pro se does not otherwise relieve [opposing party] from the usual requirements of summary judgment." Fitzpatrick v. N.Y. Cornell Hosp., No. 00-Civ.-8594(LAP), 2002 U.S. Dist. LEXIS 25166, at *5 (S.D.N.Y. Jan. 9, 2003). See also Stinson v. Sheriff's Dep't of Sullivan County, 499 F. Supp. 259, 262 (S.D.N.Y.1980).

Ward's claims of employment discrimination are subject to the now-familiar burden-shifting analysis first articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). First, she must establish a prima facie case of discrimination by demonstrating: (1) membership in a protected class; (2) satisfactory job performance; and (3) an adverse employment action, occurring under (4) circumstances giving rise to an inference of discrimination. See Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002). Once Ward has established a prima facie case, the burden shifts to Empire to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). The burden then returns to Ward, to supply evidence that the legitimate, nondiscriminatory explanation offered by Empire for its conduct is a pretext, and that the conduct was actually the result of discrimination. See St. Mary's Honor Center, 509 U.S. 502, 508 (1993).

While granting Ward the liberal interpretation and favorable inferences due to her as a non-movant and as a pro se plaintiff, I find that she has nonetheless failed to establish a prima facie case of discrimination, and/or to rebut Empire's legitimate, ...

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