The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge
(This is not an - against - an ECF case.)
Pro se plaintiff Maureen Wright-Jackson brings this lawsuit against her former employer HIP Health Plan ("HIP"), which terminated her employment on December 6, 2004. She alleges that HIP discriminated against her on the basis of her race (African-American), color (black), and national origin (Jamaican) in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C.A. §2000e, et seq. She also alleges disability discrimination in violation of the Americans with Disabilities Act of l990 ("ADA"), 42 U.S.C. §12101, et seq. HIP has moved for summary judgment. For the following reasons, I hereby grant HIP's motion.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2004, Plaintiff filed a verified complaint with the New York State Division of Human Rights ("NYSDHR"), which dismissed it and made a finding of no probable cause on July 31, 2006. (Doc #24, Exhs. 18, 20.) The U.S. Equal Employment Opportunity Commission adopted the findings of the NYSHDR and issued a Dismissal and Notice of Rights on October 10, 2006. On January 10, 2007, our Court's Pro Se Office received Plaintiff's Complaint. On the form at ¶7, she did not check "national origin," but she annexed a copy of her 9/16/04 memo to HIP in which she accused a superior of an "offensive comment about my accent."
On September 25, 2009, after a lengthy discovery period, HIP's attorney Seema A. Misra of the firm of Stroock & Stroock & Lavan, LLP, served and filed HIP's Notice of Motion for Summary Judgment (Doc #21), accompanied by the following:
Doc #22: HIP's Memorandum of Law;
Doc #23: Declaration of Plaintiff's supervisor
June Hutchinson with Exhibits 1-2;
Doc #24: Declaration of Diane McGuire with Exhibits 1-20; Doc #25: Declaration of Seema A. Misra with Exhibits 1-3; Doc #26: HIP's Rule 56.1 Statement of Undisputed Facts;
Doc #27: Notice to Pro Se Litigant Who Opposes a
Motion for Summary Judgment (This attached copies of Rule 56 of the Federal Rules of Civil Procedure, and of Local Civil Rule 56.1, and of seven unpublished cases cited by HIP).
In opposition to the motion, Plaintiff submitted the following documents (which I docketed belatedly):
Doc #33: a 17-page document titled "Plaintiff's
Doc #34: a 59-page document titled "Plaintiff's Response to
Defendant's Statement of Undisputed Facts;"
Doc #35: a 26-page document titled "Plaintiff's Response to Diane McGuire['s] Declaration for Summary Judgment;"
Doc #36: an 11-page document titled "Plaintiff's Response to June Hutchinson's Declaration for Summary Judgment;"
Doc #37: an Errata Sheet (pp. 308-21) for the 307-page transcript of her 7/10/08 deposition (the transcript is at Doc #25, Exh. 2);
Doc #38: a bound volume of Plaintiff's Exhibits, numbered 1-57 (with some gaps).
On November 23, 2009, Ms. Misra filed the following: Doc #30: HIP's Memorandum of Law in Further Support;
Doc #31: Reply Declaration of Diane McGuire;
Doc #32: HIP's Reply Rule 56.1 Statement of Undisputed Facts (This is the one document which sets out each of the 68 Facts listed by HIP in Doc #26, and then sets out each response or non-response by Plaintiff from Doc #34).
Maureen Wright-Jackson was born in 1961 and grew up in the nation of Jamaica. She was educated there and worked in business and education before she moved to New York in 1995. On September 9, 2001, she received a B.Tech. degree in Computer Systems from Globe Institute of Technology. (Doc #38, Pl. Exh. 4.) On January 15, 2003, she received an M.S. degree in Information Systems from Pace University. (Doc #38, Pl. Exh. 2.)
She started working at HIP on October 20, 1997. She was in the Medicare Marketing Department until March 2003, and was in the Government Assisted Programs ("GAP") Department from April 1, 2003 until December 6, 2004. In Doc #33, at page 8, she states:
I was a great asset to HIP, and I was happy with my employment until John Kennedy took over as Vice President of the [Medicare Marketing] Department in November 2000.
Plaintiff complains about a four-year period from November 2000 to December 6, 2004. However, as I will explain later at Point II, the statute of limitations extends back only to February 12, 2004. Any events prior to that date may be considered only as background, or potentially on the claim of hostile work environment (discussed at Point III).
Plaintiff complains at length about Mr. Kennedy and Robert Cronin. But her employment in their Department (the Medicare Marketing Department) ended in March 2003.
FACT 27 (uncontroverted by Plaintiff) states:
In March 2003, after submitting an application and interviewing with Allie Hag[e]n, (a white female)[,] Plaintiff was transferred to the GAP Department with the title Assistant Manager, Contract Compliance. McGuire Dec. at ¶10. (Doc #32, p. 27.)
June Hutchinson's Declaration states:
2. I have been employed by HIP (or Emblem Health) for over 17 years. I began my employment with HIP in 1992, and have worked in the GAP department since April of 2003. I joined GAP with the title of Manager, Contract Compliance. Effective January 5, 2004, I was promoted to become the Assistant Director, Contract Compliance in the GAP department, a position formerly held by Colette Choute. In our role as Assistant Directors, both Ms. Choute and I reported to Allie Hagen, the Director of Contract Compliance & Operations. On February 6, 2009, Ms. Hagen left HIP, and I am submitting this statement to explain some of the actions jointly t[aken] by Ms. Hagen and myself, in relation to Plaintiff Maureen Wright-Jackson.
3. I am currently responsible for dayto-day supervision of 10 employees in the GAP department. When I became the Assistant Director [on January 5, 2004], I became the direct supervisor of Ms. Wright-Jackson (who had been reporting to Ms. Hagen after Ms. Choute moved to a different department).
Both Ms. Wright-Jackson and I are African-American females of Caribbean/Jamaican background. (Doc #23, ¶¶2-3.) Accordingly, in Doc #26 HIP lists FACT 38:
In January, 2004, Hag[e]n promoted June Hutchinson, an African-American female of Jamaican/Caribbean background, to the position of Assistant Director, Contract Compliance. Plaintiff reported to Hutchinson, and Hutchinson reported to Hagen. Hutchinson Dec. at ¶2.
Plaintiff submits no evidence to controvert any aspect of FACT 38 and therefore it is deemed to be true pursuant to Local Civil Rule 56.1, which cannot be evaded by Plaintiff's Response ("I disagree with this paragraph. I cannot agree that Ms. Hutchinson was promoted January 2004. I cannot agree that Ms. Hutchinson is of a Caribbean/Jamaican background. I was co-supervised by Ms. Hutchinson and Ms. Hagen."). (Doc #34, p. 15.)
From January 5, 2004 until she was fired on December 6, 2004, Plaintiff's direct supervisor was Ms. Hutchinson. Ms. Hutchinson's Declaration explains in detail why she, and her superior Allie Hagen, and the head of the GAP Department Larry Minard, all decided to fire Plaintiff. (Doc #23, ¶¶4-9, 11-15.)
Plaintiff concedes that Ms. Hutchinson repeatedly told her that her performance was deficient. She says that Ms. Hutchinson made unreasonable demands and misguided criticisms. (Doc #34, pp. 15-27, 40, 42-44, 49-50.) But she makes no claim that Ms. Hutchinson was motivated by any intent to discriminate against Plaintiff's race, color, or national origin.
FACT 46 (undisputed, see Doc #32, p. 52) states:
In late April and May 2004, Hutchinson, Hagen and Minard contacted HR about Plaintiff's inability to improve her performance and requested to start the termination process.
Throughout 2004, Diane McGuire was Assistant Director of Employee Relations in the HR Department; her Declaration states: "In May of 2004, Ms. Hagen and Ms. Hutchinson consulted with me about terminating Mr. Wright-Jackson's employment because of work performance deficiencies. We agreed that the GAP Department would generate a written, formal warning, creating a probationary period and requiring immediate improvement." (Doc #24, ¶15.)
Ms. Hutchinson's Declaration, at ¶11, states: "We issued a formal warning on May 27, 2004, a true and correct copy of which is attached as Exhibit 2. .... Immediately upon receiving the formal warning, Ms. Wright-Jackson went out on disability leave. The [GAP] department was not informed of the details of her disability, either at that time or later [until after her termination on 12/6/04]." (Doc #23, ¶11.) The Formal Warning (Doc #23, Exh. 2) told Plaintiff: "Enrollment Statistics Report .... You must fully document the process and submit both a hard copy and electronic copy to Ms. Hutchinson no later than May 28th, 2004. .... Failure to immediately correct your unsatisfactory work performance and sustain that correction will result in further disciplinary action, up to and including termination of your employment." (Doc #23, Exh. 2, pp. 1,2,3.)
FACT 52: "The day she received this formal warning, Plaintiff went out on leave until November 1, 2004." Plaintiff does not controvert this, although her Response says: "I did not just go out on leave; I was taken out of the hostile environment by my mental health and physician health care professionals." (Doc #32, p. 70; Doc #34, p. 43.)
FACT 53 (uncontroverted by Plaintiff): "Because Plaintiff had received the May 27, 2004 formal warning, she was on probation when she returned on November 1, 2004."
Regarding Plaintiff's 11/1/04 return to work, her supervisor Ms. Hutchinson states:
When Ms. Wright-Jackson returned to work Ms. Hagen and I did everything we could to ease her back into her work responsibilities. We ordered a computer for her, and gave her access to a computer terminal and available workspace, while we determined her permanent station. On November 3, 2004, Ms. Hagen and I both met with her, and together created specific due dates for projects during November. We told her that she remained on probation, and had to timely and accurately complete the assignments given to her. She was given a lighter workload than she would normally be responsible for, and each due-date gave ample time for completion of the projects. I had generated some of these reports myself during Ms. Wright-Jackson's absence, and in some instances Ms. Wright-Jackson took a full day to complete a project that I knew from direct experience could be completed in two to three hours. (Hutchinson Decl., Doc #23 at ¶14; see also Doc #25, Exh. 1 at p. 00855 (a calendar for November 2004 listing the "due dates" referred to in the passage just quoted).)
Ms. McGuire's Declaration (Doc #24) states at ¶20: 20. On December 6, 2004, HIP terminated Ms. Wright-Jackson's employment. Attached hereto as Exhibit 16 is a true and correct copy of the December 6, 2004 letter informing Ms. Wright-Jackson of the terms of the termination. ....
Exhibit 16 to the McGuire Declaration is a memorandum to Plaintiff from Mr. Minard, Ms. Hagen and Ms. Hutchinson, with the subject line "Termination of Employment," dated December 6, 2004. It said, in part:
You returned to work from an approved leave of absence on November 1, 2004 and on November 3, 2004 met with June [Hutchison] and me [Allie Hagen]. Together we developed a calendar that clearly defined the specific projects you would be working on beginning November 3, 2004 through November 9, 2004.
The calendar also specified each project due date mutually agreed to. Prior to your leave of absence, you were on a [5/27/04] formal warning for unsatisfactory work performance.
You were reminded that the formal warning remained in effect upon your return. Following a formal warning, it is generally HIP's practice to provide an employee with a two week period to demonstrate correction; an uncorrected performance would result in termination of employment. During the meeting on November 3, 2004, I also reiterated the reasons for the Formal Warning in May and advised it was necessary for you to be able to complete projects accurately and on time and that you needed to follow the agreed upon calendar. However, since you just returned from leave we did not hold you as strictly accountable for the agreed upon deadlines for the first week of your return. (Doc #24, Exh. 16, p. 1.) The memorandum then discusses Plaintiff's work on six specified projects, of which two were completed late and two were never completed. The next to last paragraph said:
You continue to not follow directions or communicate clearly in a timely manner when you can not meet established deadlines. The work you have submitted has not been accurate or has not been in the form requested. You have failed to correct your unsatisfactory work performance and as a result, the decision has been made to terminate your employment with HIP Health Plan of New York effective today, December 6, 2004. (Id., p. 3.)
The Standards for Summary Judgment Summary judgment shall be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
This form of relief is appropriate when, after discovery, the party -- - here plaintiff -- - against whom summary judgment is sought, has not shown that evidence of an essential element of [his] case -- - one on which [he] has the burden of proof -- - exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This form of remedy is inappropriate when the issue to be resolved is both genuine and related to a disputed material fact. An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).
Powell v. National Board of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004). As to materiality, the substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2508 (1986).
.... In deciding the [summary judgment] motion, the trial court must first resolve all ambiguities and draw all inferences in favor of the non-moving party, and then determine whether a rational jury could find for that party.
At the same time, the non-moving party must offer such proof as would allow a reasonable juror to return a verdict in his favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and only when that proof is slight is summary judgment appropriate, see Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). The trial court's function at this stage is to identify issues to be tried, not decide them.
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). In short, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2508 (1986).
[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence [presented by the non-moving party] is merely colorable, or not significantly probative, summary judgment may be granted.
Anderson, 106 S.Ct. at 2511 (internal quotation marks and citations omitted).
The Second Circuit has often cautioned that in employment discrimination cases where intent of the employer is a central factual issue, courts should be "chary" in granting summary judgment. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000), citing Chertkova v. Connecticut Gen. Life Ins., 92 F.3d 81, 87 (2d Cir. 1996). See also, Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). "[E]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999). Nonetheless, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994). "It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001.)
Plaintiff is pro se, and she obviously spent many days preparing her voluminous papers, which I must interpret "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). It is natural to sympathize with a person suffering from depression and from loss of a job. Nonetheless, the law is clear that pro se status does not relieve a litigant from the usual requirements of summary judgment. Fitzpatrick v. New York Cornell Hosp., 2003 WL 102853, *5 (S.D.N.Y. Jan. 9, 2003).
Accordingly, the plaintiff must provide "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Pr. 56(e). Our court must grant HIP's motion for summary judgment unless Ms. Wright-Jackson shows that there is a "genuine" dispute for a trial -- - i.e., "there is sufficient evidence favoring [her] for a jury to return a verdict for [her]." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). This she has not done.
HIP's Motion for Summary Judgment
In its Memorandum of Law in Further Support (Doc #30), HIP starts with a new point and then repeats the six points previously made ...