The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Carmen I. Bonilla ("Plaintiff" and/or "Bonilla"), proceeding pro se, brings this action pursuant to the Americans with Disabilities Act of 1990, (codified at 42 U.S.C. §12112 et. seq.) ("ADA") alleging that defendant Monroe #1 BOCES, incorrectly named as Monroe BOCES #1 (hereinafter "Defendant" or "BOCES"), discriminated against her, forced her to resign her employment and retaliated against her because of her alleged disability, namely, depression and bi-polar disorder.
Defendant moves for summary judgment, arguing that Plaintiff's claims fail as a matter of law because she cannot establish a prima facie case of disability discrimination. BOCES contends that Bonilla is not "disabled" within the meaning of the ADA, and even if she were, she cannot demonstrate that she was subjected to adverse employment action because of her disability. Moreover, Defendant submits that Plaintiff cannot establish that her termination (or forced resignation) was merely a pretext for discrimination based upon her disability. Plaintiff has not opposed Defendant's motion*fn1 .
For the reasons set forth below, Defendant's Motion for Summary Judgment is granted and Plaintiff's Complaint is dismissed with prejudice.
Local Rule of Civil Procedure 56.1 requires that a party moving for summary judgment include with its motion a "separate, short, and concise statement of the material facts to which the moving party contends there is no genuine issue to be tried." See Local Rule 56.1(a). "When a party has moved for summary judgment  and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). In light of Plaintiff's failure to properly controvert Defendant's Statement of Material Facts ("SOMF"), this Court will deem those factual assertions admitted to the extent they are supported by the record evidence. See Local Rule 56.1(c) (statements of undisputed fact that are not controverted by the non-moving party are deemed admitted); Cassidy v. Nicolo, 2005 WL 3334523, *2 (W.D.N.Y. 2005) (facts asserted by the defendants deemed admitted where the plaintiff failed to file a response). Accordingly, the undisputed facts are as follows:
BOCES is a "Board of Cooperative Educational Services" which provides services and education to individuals in the BOCES Community. It is an extension of its component school districts. Plaintiff was employed by BOCES from June 2000 through January 2005 as a substitute bus attendant. In that position, Plaintiff accompanied bus drivers on bus runs and assisted students with boarding, riding and exiting the bus. In between bus runs, Plaintiff would wait in a coffee/lunch room (the "break room") with other bus attendants. Although Bonilla performed her duties as a bus attendant well, she was involved in a number of incidents in the break room with other bus attendants, which ultimately led to her dismissal in January 2005.
B. Plaintiff's Conflict with Co-workers
Plaintiff testified in her deposition that in or around June 2004 she began to have conflicts and problems with a few of her co-workers. Specifically, Plaintiff claimed three female co-workers routinely called her names, gossiped about her, and generally harassed her on a daily basis. (Defendant's Statement of Material Facts ("SOMF"), Ex. 7, pp. 36-42). The alleged offenders purportedly called her "crazy" and "menopausal" and made comments indicating that she was a jealous woman and had engaged in prostitution. (Defendant's SOMF, Ex. 1; Ex. 7, pp. 58-59). Plaintiff claims the problems with her co-workers aggravated her already existing disability - depression and bi-polar disorder - and made her increasingly more nervous, anxious, and aggressive. (Defendant's SOMF, Ex. 7, pp. 32-35). Plaintiff also claims that her immediate supervisor and the female co-workers allegedly harassing her knew of her mental health issues and "nervousness," and were purposely trying to provoke and aggravate her. (Id., pp. 36-38).
In and around November 2004 through December 2004 both Bonilla and several of her female co-workers filed written complaints with their immediate supervisor, Nicholas Gonzalez ("Gonzalez"), regarding problems the co-workers were having with each other. Gonzalez considered the complaints by the women to be "high school nonsense," but attempted to resolve the apparent conflict among them nonetheless. (Defendant's SOMF, Ex. 3. ¶10). Gonzalez met with the employees and offered to assign Bonilla to a permanent bus run so that she would not have to spend as much time interacting with her co-workers in the break room. (Id., ¶11). Bonilla turned down this opportunity. (Id.). When Gonzalez concluded that he would not be able to resolve the conflict among the co-workers on his own accord, he referred the matter to the Executive Director of Human Resources, Sheila Wallenhorst ("HR"). Gonzalez provided HR with copies of all of the written complaints filed by Bonilla*fn2 and her co-workers.
C. Discharge of Plaintiff from BOCES
HR reviewed the written complaints filed by Bonilla and her co-workers regarding their conflicts and scheduled a meeting with all involved employees to discuss the issues among them. (Defendant's SOMF, Ex. 2, ¶¶ 6, 7). HR attempted to conduct that meeting in December 2004 before the holidays, but Bonilla was unable to attend due to medical absence. It is unclear from the record whether this medical absence was due to Bonilla's depression and bi-polar disorder or from some other unrelated condition. The meeting was rescheduled for January 10, 2005.
Just prior to the meeting with HR, Bonilla and two of the alleged offenders were involved in an altercation on January 6, 2005. Bonilla claims that two of the women with whom she was having difficulty approached her in the ladies' room, made negative comments to her and then pushed her. (Defendant's SOMF, Ex. 7, pp. 57-60). Bonilla left the bathroom, and the women followed her, making further comments to her. (Id.). Upon returning to the break room, allegedly in defense of herself, Bonilla pushed the two women. (Id.). The altercation in the break room was witnessed by other co-workers, but apparently the altercation in the bathroom was not. (Defendant's SOMF, Ex. 7, p. 61). Plaintiff was immediately sent home for the day, and then was unable to return to work for approximately three weeks due to her mental health issues. (Id., pp. 62-3).
HR attempted to contact Bonilla by telephone and in writing following the January 6, 2005 incident to discuss the matter. On January 18, 2005, Bonilla and her husband and her daughter (who attended in order to translate for her mother) attended a meeting with HR. (Defendant's SOMF, Ex. 2, ¶15). During the meeting, Plaintiff admitted to pushing the two women, but did not tell HR that the incident was first instigated by them in the ladies' room. (Id.). In accordance with BOCES' "zero tolerance" policy and prohibition against physical assault on employees, Bonilla was asked to resign (in exchange for BOCES not contesting her entitlement to unemployment benefits). She was told that if she did not resign, her employment would be terminated. (Id., ¶17). Plaintiff elected to resign and signed a resignation letter dated January 18, 2005. (Defendant's SOMF, Ex. 21).
Plaintiff testified that Gonzalez and her Spanish speaking co-workers knew of her problems with depression and bi-polar disorder (Defendant's SOMF, Ex. 7, pp. 36-38), and knowing of her "nervous condition," the alleged offenders engaged in a campaign to provoke, ridicule and annoy Plaintiff to aggravate her condition. (Defendant's SOMF, Ex. 7, pp. 50-53). Moreover, BOCES allegedly discriminated against Bonilla based on Gonzalez's failure to address the problem and concerns that Bonilla brought to him. (Defendant's SOMF, Ex. 7, pp. 67-69). Plaintiff testified that she believed Gonzalez did not do anything to help her with the co-worker harassment because two of the alleged offenders were his family members. (Defendant's SOMF, Ex. 7, pp. 42-43). Other than these statements, Bonilla could not articulate the basis for her claims of discrimination, harassment and retaliation based upon her disability.
I. Standard of Review on a Motion for ...