The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
Memorandum, Decision and Order
Presently before the court in this employment discrimination action is a motion for summary judgment by defendant, Niagara Mohawk Power Company, doing business as National Grid ("National Grid") against plaintiff, Yvette M. Reddick ("Reddick"), seeking dismissal of the complaint in its entirety. Reddick opposes the motion and National Grid replies. Decision is rendered on the papers submitted, without oral argument.
Summary judgment may only be granted when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (internal quotations omitted) (quoting FED. R. CIV. P. 56(c)). The court's role on a motion for summary judgment is not to resolve factual issues, but rather to determine "whether there are issues to be tried." Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (internal quotations omitted) (quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319--20 (2d Cir. 1975)). Upon evaluating the pleadings and the record, the court must resolve all ambiguities and draw all rational factual inferences in favor of the party opposing summary judgment. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). However, when a non-moving party "fails to make a showing sufficient to establish the existence of an essential element to that party's case," summary judgment must be granted against that party. See Tufariello v. Long Island R.R., 458 F.3d 80, 85 (2d Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548 (1986)).
Before setting forth the material facts not in dispute, upon which this court relies in deciding the pending motion, it is necessary to review the local and federal procedural rules as well as the law in this circuit regarding the court's ability to deem admitted a statement of material fact. This court's local rules requires a moving party to provide a Statement of Material Facts, setting forth in numbered paragraphs each fact about which it contends there is no genuine issue, including a specific citation to the record where the fact is established. See N.D.N.Y. R. 7.1(a)(3). The Local Rules further provide that an opposing party must submit a response to the moving party's Statement of Material Facts "by admitting and/or denying each of the movant's assertions." Id. Where a fact is denied, the opposing party must set forth a specific citation to the record where the factual issue arises. Most importantly, the Local Rules emphasize that "[t]he court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." Id.
The Court of Appeals for the Second Circuit has held that district courts have "broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001). However, where the record does not support the assertions in the Statement of Material Facts, "those assertions should be disregarded and the record reviewed independently" even where the opposing party fails to controvert them. Id., at 74.
In accordance with the foregoing, the following facts are deemed admitted, except where otherwise noted.
Reddick suffers from ailments including pseudotumor cerebri, chronic migraine headaches, and uterine fibroids. In June 2002, Reddick was hired by National Grid as a part-time customer service representative ("CSR"). Reddick was employed at National Grid's Contact Center ("Contact Center") in Syracuse, New York as a CSR under the management of Theresa M. Overdyk ("Overdyk"). As a CSR, Reddick was represented by Local 97, International Brotherhood of Electrical Workers, AFL-CIO ("Union"). Employees at the Contact Center handle all types of customer calls, including calls regarding power outages and emergencies. Regular and consistent attendance is an important and essential function of the CSR position. As a result, employees are required to call the company when they will be absent and provide medical documentation to support their absences.*fn1
National Grid has a lost-time policy that subjects employees with three or more absences that are not covered under the Family Medical Leave Act ("FMLA") to potential counseling or discipline. Under the company's Positive Discipline Program, employees subject to discipline for unwarranted absences are given counseling, oral and written reminders. The final step of the Positive Discipline Program entails placing an employee on a Decision Making Leave ("DML"). Employees placed on a DML are advised that they will be terminated if they have any further problems with their attendance over the duration of the DML.
Reddick participated in three coaching sessions regarding her poor attendance in 2004 and 2005. National Grid further contends that Reddick received an oral reminder in March 2005 for failing to abide by the company's call-in and medical documentation policies. However, Reddick argues that National Grid does not provide an adequate definition or record of any "oral reminder" given. In August 2005, Plaintiff received a written reminder for attendance problems. In the following month, Reddick was absent from work after an exposure to tuberculosis.*fn2 Reddick was given a PPD test for tuberculosis on September 24, 2005, and she was advised to return forty-eight to seventy-two hours later for the results. Around the same time in September 2005, Reddick called National Grid nurse Pat Goodyear ("Goodyear") to discuss her exposure to tuberculosis. Reddick contends that Goodyear advised her to stay home from work because of the exposure.*fn3 However, Goodyear recalls advising an unidentified female employee with a positive PPD test for tuberculosis to contact a physician for further instructions.
Reddick's PPD test returned positive and on September 27, 2005 she received an x-ray, which was eventually read as negative. See Dep. of Yvette M. Reddick, Nov. 18, 2009, 48:6-24, D.t. No. 40-5 ("Reddick Dep."). Reddick was absent from work from September 23, 2005 through October 5, 2005. See Reddick Dep., 47:20-48:1.
Reddick did not submit any medical documentation in support of her extended absence from September through October 2005. National Grid placed Reddick on a DML in December 2005 because of her continued absenteeism and failure to comply with its call-in and medical documentation policies. Reddick objects to National Grid's contention that she failed to comply with medical documentation policies during this absence, arguing without citation to the record that National Grid does not adequately define acceptable medical documentation and that Goodyear's alleged instruction to miss work excused Reddick from the need to provide additional documentation. As a condition of being placed on a DML, Reddick was given a final warning and advised that she would be terminated if she had any more unexcused absences.*fn4
Reddick was absent on January 3 and January 6, 2006. National Grid claims that Reddick never provided medical documentation supporting her January 6 absence, and that she did not provide medical documentation for her January 3 absence until January 19, 2006. Reddick claims, without any support in the record, that National Grid has no clear policy defining adequate medical documentation as it pertains to absence reporting. On February 7, 2006, Reddick attended a meeting with Overdyk, Union Representative Ted Skerpon, and Supervisor Jeanne Roloff. At this meeting, Reddick purported to have medical documentation supporting her January 6, 2006 absence. However, she never provided the document to National Grid personnel. Ultimately, Reddick was terminated at this meeting as a result of her lost time record and continued failure to comply with other National Grid policies."*fn5
Reddick filed a grievance regarding her termination that proceeded to
final and binding arbitration before a neutral arbitrator.*fn6
After a hearing and receipt of post-hearing briefs, the
arbitrator found that National Grid did not discriminate ...