The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff Deborah Kamrowski, proceeding pro se, brings this action against her former employer, Defendant Morrison Management Specialist ("Morrison or Defendant"), alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA").*fn1 Defendant moves for summary judgment on all of Plaintiff's claims. For the reasons set forth below, Defendant's motion is granted.
Plaintiff is a white female who suffers from dyslexia and attention deficit disorder. Defendant is a "provide[r of] food, nutrition[,] and dining services to the health and hospitals industry." (Def.'s Local Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1 Stmt.") ¶ 1.)*fn2
Catskills Regional Medical Center ("CRMC"), a hospital and nursing facility in Sullivan, New York, is one of Defendant's clients. (Def.'s 56.1 Stmt. ¶ 2.) Plaintiff was employed by Defendant as a Clinical Nutrition Manager at CRMC from November 2002 until she was terminated in November 2003. (Affirmation/Aff. of Deborah Kamrowski, Pl.'s Statement of Undisputed Facts ("Pl.'s Stmt.") ¶ 137; Def.'s 56.1 Stmt. ¶ 5.)*fn3 Plaintiff's direct supervisor during her employment was Brad Chandler, Defendant's Director of Food and Nutrition. (Def.'s 56.1 Stmt. ¶ 7.) Sherri Reynolds was an employee of CRMC, who served as Mr. Chandler's administrative assistant. (Id. ¶ 10.) Matt Shoemaker was Morrison's Assistant Director of Food and Nutrition (id. ¶ 8), and Jeanne Hanslmaier was the Production Manager, (id. ¶ 9). Kim Kelly and Carol Parkerson were supervisors in Morrison's Food Services Department, and Rob Finelli and Pam Garnett served as Regional Managers. (Aff. of Brad Chandler ("Chandler Aff.") ¶ 6.) Barbara Lutz was a dietitian with many years of experience at CRMC. (Aff. of Barbara Pritchard nee Lutz ("Lutz Aff.") ¶ 1.)*fn4
Plaintiff alleges that she was retaliated against for reporting "mismanagement" because she reported numerous food and sanitation concerns to management. For example, Plaintiff claims that she was retaliated against for reporting that Defendant was not "using the recipe" for "classic purees" (Pl.'s Stmt. ¶ 227), experiencing a "food shortage" (id. ¶¶243-45), keeping food "as old as two weeks" in the walk-in fridge (id. ¶ 240), and serving old food to patients, (id.; Affirmation/Aff. of Gladys Reeves ("Reeves Aff.") ¶¶ 10, 27). Plaintiff also alleges that she reported such incidents as serving "macaroni [and] cheese because it [did not] smell bad regardless of being [two] weeks old" (Pl.'s Stmt. ¶ 322), "[u]sing the steam table to hold the food [for] three hours" (id. ¶ 324), and finding a "hair that is normally found on a mop in an egg salad sandwich," a "[l]ive roach on a dome lid," and a "[f]inger nail in the rice," (id. ¶ 325). Plaintiff also alleges that on one occasion, a "dented can of peaches was opened and placed" at another employee's work station, and that "the peaches were left for him to use and that he [would] probably be terminated." (Id. ¶¶ 7, 97-98.) Plaintiff was concerned that the peaches were "dripping with syrup that had leaked out" and that "[t]here is no antidote for botulism," so she called infection control. (Id. ¶ 199; Tr. of Pl.'s Dep. ("Tr.") 219.)*fn5 However, Plaintiff admits that the peaches were thrown out and that no patient ever became ill, and that she did not know if the peaches actually had botulism. (Tr. 219.)*fn6
Plaintiff also alleges that she was retaliated against for "living the anti-discrimination laws" and "following the anti-discrimination laws." (Pl.'s Stmt. ¶ 172.) Plaintiff alleges that "the first evidence of unfair treatment" was when she "witnessed" an African American employee's flu, but the employee was suspended for being absent even though she was ill. (Id. ¶ 175; Tr. 197.) Plaintiff does not allege that she told Mr. Chandler or any other supervisor that this suspension was racially motivated, stating in her deposition that she felt that the employee was suspended for "no reason" because she had the flu. (Tr. 197-98.) Similarly, Plaintiff alleges that another African American employee was suspended for being absent when "[m]anagement was aware" that she went to a funeral, without alleging that Plaintiff reported any racial discrimination related to the suspension. (Pl.'s Stmt. ¶ 174; Tr. 197-98.)
Plaintiff further alleges that she told Mr. Chandler that Ms. Hanslmaier did not "like black people" because Plaintiff had been told this by other people. (Tr. 410; Pl.'s Stmt. ¶ 166.) Plaintiff could not specify when she informed Mr. Chandler that Ms. Hanslmaier did not like African Americans, stating that it occurred "anywhere from March." (Tr. 409.) At that time, Plaintiff told Mr. Chandler about an incident involving Wendy McDonald, an African American employee, who became upset when a kitchen worker splashed water in her face. (Id. at 410-11; Pl.'s Stmt. ¶ 181.)*fn7 Plaintiff also alleges that, in March 2003, she told Mr. Chandler that another supervisor had informed her that the supervisor had been told by another employee that a kitchen worker, who was an employee of CRMC, called another kitchen worker (who was also a CRMC employee) a Spanish word that translated to "little nigger." (Tr. 383-86.) Plaintiff also lists several other incidents that she believes involved racial discrimination, such as African Americans getting poor schedules or Ms. Hanslmaier throwing coffee at an African American employee, but she does not allege that she reported any of these incidents to Mr. Chandler or to other supervisors. (Pl.'s Stmt. ¶¶ 177-78, 191-96.) Mr. Chandler did not take any disciplinary action against Plaintiff in March 2003, when she allegedly reported the kitchen worker incident. (Tr. 391.)
2. Conflicts Between Plaintiff and Co-workers and Supervisors
The Parties agree that there was conflict between Plaintiff and some of her co-workers and supervisors, but they disagree as to who was at fault. Plaintiff alleges that she was frequently treated uncivilly both by her managers and her co-workers. Plaintiff complains that fellow employees "spoke rudely about [her] all the time." (Pl.'s Stmt. ¶ 66.) In particular, Plaintiff felt that Ms. Hanslmaier treated her poorly. According to Plaintiff, Ms. Hanslmaier gossiped about Plaintiff (id. ¶¶ 157, 161), told Mr. Chandler that Plaintiff was "[c]rass" (Am. Compl. Ex. 24, at 2), and harassed Plaintiff by throwing papers, an empty container, and other things at her, (Pl.'s Stmt. ¶ 381; Am. Compl. Ex. 24, at 6). She alleges that other co-workers cursed at her (Pl.'s Stmt. ¶¶ 287, 321), and that one employee left "[h]and cream on [her] chair four times," (id. ¶ 380).
Defendant concedes that "[i]t is undeniable that Plaintiff did not get along with her supervisors and many of her co-workers" (Mem. of Law in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") 1), contending that Plaintiff "criticized everyone around her," frequently accusing her co-workers of assorted forms of misconduct, (id. 6). Defendant has submitted affidavits of Ms. Hanslmaier, Ms. Pritchard, and Stacey Hollenbeck, three individuals employed at CRMC at the same time as Plaintiff, who stated that Plaintiff was "very polarizing" (Lutz Aff. ¶ 4), and that Plaintiff generated conflicts at work and "meddled in other employees' business," (Aff. of Jeanne Hanslmaier ("Hanslmaier Aff.") ¶ 5; Aff. of Stacey Hollenbeck ("Hollenbeck Aff.") ¶ 2).
Plaintiff also complains of uncivil behavior by Mr. Chandler, her supervisor. The evidence shows that Mr. Chandler did, on occasion, use inappropriate language (Decl. of Denise Swedish ("Swedish Aff.") ¶ 7; id. Ex. C), and Plaintiff alleges that he did so in her presence. For example, Plaintiff claims that Mr. Chandler also, at least on one occasion, "stated [she] was gross" because she had sores on her legs from her psoriasis. (Am. Compl. Supp. 4.) Defendant agrees that Mr. Chandler and Plaintiff had a difficult time communicating with one another "from the outset of her employment" (Chandler Aff. ¶ 7), but Defendant faults Plaintiff for "undermin[ing] [Mr.] Chandler by complaining publicly about his job performance and attributing all deficiencies to his management," (Lutz Aff. ¶ 5).
On June 27, 2003, Mr. Chandler issued a warning letter to Plaintiff informing her of management's concerns about her performance. (Chandler Aff. Ex. G, at 1.) The letter addressed, among other things, management's perception that Plaintiff "exacerbate[d]" confrontations with subordinates, reported complaints about "unit concerns that are by nature handled within the unit" to managers outside the unit, communicated with employees about grievances with their managers, and conversed with employees about unsubstantiated rumors. (Id. at 1-2.) In addition, the letter expressed concern that Plaintiff was not completing her work and instructed Plaintiff to create a schedule to allow her to "catch-up on both patient care duties and [a] management . . . [p]rogram." (Id. at 2 (internal quotation marks omitted).) The warning letter instructed Plaintiff to attend a one-day seminar entitled "[h]ow to handle people with Tact and Skill" by August 2003. (Id.) Mr. Chandler discussed the warning letter with Plaintiff and advised her that she must show satisfactory improvement or employment action would be taken. (Id. at 3.)
On September 4, 2003, Mr. Chandler e-mailed Denise Swedish, Defendant's Field Human Resources Manager, to discuss his concerns about Plaintiff's lack of improvement and his intention to issue her a final warning. (Chandler Aff. ¶ 13.) As part of the September 4, 2003 e-mail, Mr. Chandler sent Ms. Swedish a draft of "a final 30 days letter to be issued to" Plaintiff, asking Ms. Swedish to "advise [him] on content and procedure." (Id. Ex. H.) On September 8, 2003, Ms. Swedish provided Mr. Chandler with edits to the thirty-day warning letter and suggestions for reviewing the letter with Plaintiff, including going "through the final warning" with her, describing what needs improvement, and explaining that "[i]f expectations are not met in 30 days, termination will result." (Id.)
On September, 26, 2003, after several consultations with Ms. Swedish, Mr. Chandler notified Plaintiff by letter that she was being offered "a final 30-day opportunity to become a positive, working member of the management team." (Id. Ex. I, at 1.) The letter stated that Plaintiff's performance would be monitored for thirty days, and that if she had not improved by October 27, 2003, further disciplinary action, including termination, could result. (Id.)
4. Plaintiff's Allegations of Sexual Harassment
In July 2003, soon after Mr. Chandler's initial warning to Plaintiff, Plaintiff reported to Rob Finelli, Defendant's Regional Director of Operations, that Mr. Shoemaker, the Assistant Director of Food and Nutrition Services, had engaged in sexually harassing conduct. (Affirmation/Aff. of Pl. ("Pl.'s Aff.") 1-2; Pl.'s Stmt. ¶ 354.) Plaintiff allegedly learned of Mr. Shoemaker's conduct from Corrina Banks, a hospital employee, and from Ms. Reeves. (Pl.'s Stmt.¶¶ 338-40; Reeves Aff. ¶ 25.) According to Plaintiff, Ms. Reeves notified her that she had overheard Ms. Hanslmaier and Mr. Shoemaker discussing "cucumber sex" and that she or another employee witnessed Ms. Hanslmaier "swipe a piece of paper up between his legs." (Pl.'s Stmt. ¶ 352.) Ms. Banks told Plaintiff that on another occasion, Mr. Shoemaker told Ms. Banks that she "could get on the table and be the dessert." (Pl.'s Resps. and Opp'n for Mot. of Summ. J. ("Pl.'s Ex.") Ex. E, at unnumbered page 72.)*fn8 Plaintiff never actually witnessed any of Mr. Shoemaker's inappropriate comments or actions (Tr. 149), but she felt that the repeated reports of Mr. Shoemaker's conduct began to "interfer[e] with [her] ability to get [her] work done," (Pl.'s Stmt. ¶ 354).
After Plaintiff reported Mr. Shoemaker's conduct to Mr. Finelli, she alleges that he "ignore[d]" the harassment, "hid . . . [Mr.] Shoemaker's prior inappropriate sexual behavior," and "[wrote her] up for reporting" the harassment. (Id. ¶ 123.) Plaintiff has presented no evidence to support her claim that she was written up for reporting the harassment, but Ms. Reeves, in a sworn affidavit, stated that Mr. Finelli "coerced [P]laintiff twice to keep quiet about the sexual harassment," though neither Ms. Reeves nor Plaintiff provided specifics about this claim. (Reeves Aff. ¶ 24.)
On September 22, 2003, after Mr. Chandler and Ms. Swedish decided to issue a final 30-day warning but prior to the issuance of the letter to Plaintiff, Plaintiff contacted Diane Toomey, Defendant's Human Resources Administrator, and complained about unspecified harassment in the workplace. (Swedish Aff. ¶ 3; id. Ex. A.) On September 23, 2003, Plaintiff contacted Ms. Swedish and complained that Mr. Chandler's June 2003 warning was harassment because it was preventing her from doing her job. (Id. ¶ 4.) A few days later, on September 25, 2003, Plaintiff submitted a written complaint to Ms. Swedish regarding alleged harassment by Mr. Chandler and Mr. Shoemaker. (Id. ¶ 5; id. Ex. B.) Plaintiff does not claim that Mr. Chandler sexually harassed her; indeed, Plaintiff stated in her deposition that she "didn't say [Chandler] was [a] sexual harass[er]," but "said he was a harasser." (Tr. 151.) However, Plaintiff accuses Mr. Chandler of referring to female employees in "derogatory" terms (Am. Compl. Ex. 24, at 5), calling two of her co-workers "fat ass" (Pl.'s Stmt. ¶ 289), and "dumb as a door knob," (id. ¶ 302).
5. Other Gender-Based Discrimination Claims
Plaintiff also complains that she was discriminated against by Mr. Chandler based on her gender because he withheld information regarding career development programs from her, ostensibly because he did not want women to advance in the workplace. (Tr. 115-18, 133-35.) Plaintiff admits, however, that the only person whom Mr. Chandler allegedly informed of these programs was Ms. Hanslmaier, a female employee. (Id. at 117-18.)
Plaintiff also alleges that she was not promoted based on her gender. Though Plaintiff advised Mr. Chandler in March 2003 of her interest in a promotion to Assistant Director, the position was not vacant at the time, as the then-current Assistant Director was only out on a leave of absence. (Id. at 133-34.) A new individual was not placed in that position because the Assistant Director returned from his leave of absence. (Id. at 135.) Subsequently, Plaintiff did not request a promotion to a specific available position. (Id.)
Plaintiff claims that other female employees were not promoted. (Pl.'s Stmt. ¶ 89; Reeves Aff. ¶ 24.) She contends that she heard from other employees that Mr. Chandler stated that he "wanted a man for the position." (Pl.'s Stmt. ¶ 292.) Plaintiff has produced no direct evidence to support this claim.
6. Plaintiff's Dyslexia and Attention Deficit Disorder
Plaintiff has dyslexia and attention deficit disorder. Plaintiff claims that she notified Mr. Chandler of her dyslexia on at least two or three occasions during her employment, including as far back as November 2002. (Tr. 87-90.) However, the record reveals that Plaintiff's physician, Dr. John Lucas, notified Defendant on October 14, 2003 (after Plaintiff had been issued the final 30-day warning letter) that she "suffer[ed] from a developmental reading disability and requires additional time for reading and writing assignments." (Swedish Aff. Ex. E.) Plaintiff notified Ms. Swedish and Mr. Chandler on November 3, 2003 that "the only accommodation [she] need[ed] [wa]s to have important information proof read . . . ." (Id. Ex. F; Am. Compl. Ex. 20, at 9.) In her deposition, Plaintiff repeated her assertion that the only accommodation she required ...