The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
On October 15, 2008, Plaintiff brought this action pursuant to the Americans with Disabilities Act ("ADA") and the New York State Human Rights Law ("NYHRL"). Specifically, Plaintiff alleged discrimination and retaliation in violation of the ADA and the NYHRL.*fn1
Currently before the Court is Defendant's*fn2 motion for summary judgment.
Defendant Petr-All is a New York corporation that operates Defendant Express Mart gas stations and convenience stores throughout Central New York. Defendant first employed Plaintiff in June 2000 as a store manager for Defendant's Store #360. While employed, Plaintiff reported directly to the area supervisor for the geographic area in which the store was located, Area 6. When Plaintiff began, the Area 6 supervisor was Kevin Connelly. Later George Tartick and then Steve Nucci were Area 6 supervisors. The area supervisors, in turn, reported to the Director of Marketing. For most of Plaintiff's tenure, the Director of Marketing was Kevin Quinton. At the time of Plaintiff's termination, the Director of Marketing was Chris Sweeney.
When she was hired, Plaintiff was provided an Employee Hire Package. The Package included Defendant's Policies Regarding Security and Personal Conduct, which, among other things, stated that "anyone that commits violations of these rules may be subjected to termination of employment . . ." and that one such rule was the "[r]efusal to comply with the instructions of management." Plaintiff signed a document acknowledging that she had received and reviewed these policies.
Plaintiff also received a job description. As a store manager, Plaintiff was responsible for scheduling employees, covering missed shifts, making coffee, sweeping, stocking coolers, waiting on customers, making pizzas, and entering paperwork. She was also responsible for hiring employees and conducting employee reviews. Plaintiff typically worked six days a week. In 2006, Plaintiff received a handbook from Defendant Petr-All. The handbook contains, among other things, a policy regarding job descriptions and reasonable accommodations.
Plaintiff's employment with Defendant Petr-All was unremarkable until November 2006. At that time, Plaintiff, while intoxicated, made phone calls to both Chris Sweeney and Kevin Quinton, then Director of Marketing. See Deposition Transcript of Steven Nucci dated August 18, 2009 ("Nucci Tr."), at 175; Deposition Transcript of Susan Guinup dated May 27, 2009 ("Guinup Tr."), at 66-69, 77; Deposition Transcript of Christopher Sweeney dated December 22, 2009 ("Sweeney Tr."), at 54. The phone calls contained several "F-bombs" and other inappropriate language. See Sweeney Tr. at 54. Mr. Nucci, who was Plaintiff's supervisor at the time, investigated the incident and considered terminating Plaintiff. However, he felt that the fact that Plaintiff had been under the influence of alcohol at the time and Plaintiff's later remorse mitigated against termination. See Nucci Tr. at 182. Consequently, Mr. Nucci decided to give Plaintiff a final written warning and a one-week suspension. The final written warning indicated that Plaintiff had violated "Rule #5"*fn4 and stated that, "[i]f Sue violates this rule or any other policy, she will be dismissed and terminated from our employment." See Guinup Tr. at 79;
Affidavit of Leslie Prechtl Guy sworn to March 1, 2010 ("Guy Aff."), at Exhibit "E."
In March 2007, Plaintiff injured her shoulder, and her physician placed her on light duty. Defendant accommodated Plaintiff's need for light duty for three weeks.
For the six years prior to April 2007, Mr. Nucci consistently graded Plaintiff as meeting or exceeding all of management's job performance criteria and expectations. See Nucci Tr. at 194-95; Guinup Tr. at 64-65. Comparative sales at Plaintiff's store ranked in the upper half; store inspections, inventory/cash controls, and payroll budget compliance consistently met or exceeded expectations. See Nucci Tr. at 195. As a result, in seven years, Plaintiff only missed receiving a quarterly Manager's Incentive Bonus, based on multiple factors, including productivity, sales, growth, profits, and expenses, two to four out of twenty-eight times. See Nucci Tr. at 102; Declaration of Susan Guinup dated April 26, 2010 ("Guinup Decl."), at ¶ 5.
As part of her job duties, Plaintiff was required to create a weekly work schedule for her employees. To do this, Plaintiff was required to use the authorized payroll budget that told managers how many hours they were allowed to use for payroll each week. In creating the payroll budget, the area supervisor would submit a proposed payroll budget which, if necessary, the Director of Marketing would review. The payroll budget changed as needed in order to make certain that payroll was consistent with the store's need. Factors considered in creating the payroll budget for a particular store included the store's sales, the delivery schedule for products, and coverage issues.
In April 2007, Mr. Nucci reduced the payroll budget for Plaintiff's store by thirteen hours from 353 to 340 hours per week. Mr. Nucci testified that he did this in part because rising fuel costs were reducing store profit margins and because Plaintiff's store's sales had decreased. See Nucci Tr. at 137, 144. Mr. Nucci also reduced payroll budgets for other stores within his area. See id. at 137. The net result of this reduction was that, in her capacity as store manager, Plaintiff would be working a minimum of sixty to sixty-five hours per week because she was required to work all store hours not covered by the reduced budget. See Guinup Decl. at ¶ 8.
For the six years prior to April 2007, during which Plaintiff worked under Mr. Nucci's direction and control, although the payroll budget was stated in terms of hours on a weekly basis, as long as the store manager's total payroll budget for the quarter (13 weeks) was not exceeded, Mr. Nucci considered store managers, including Plaintiff, to be in budgetary compliance. See Nucci Tr. at 122. Mr. Nucci had discretion to modify Plaintiff's store's payroll budget without further management approval and had, on occasion, increased the budget based on Plaintiff's recommendations and/or report of conditions at the store. See id. at 129, 133.
Plaintiff communicated her concerns to Mr. Nucci, both verbally and in writing, requesting clarification as to the reasons for this payroll budget reduction. See Nucci Tr. at 140; Guinup Tr. at 91. Plaintiff urged that the new payroll budget was too low because the store's busy season was starting and business was brisk; she had lost two of her key night people from the previous year; when she was off-duty for medical treatment, it took more manpower to fill her duties; and, due to work related injuries she had sustained, she was supposed to be on light duty for a period of time. See Guinup Decl. at ¶ 9; Guinup Tr. at 123-24; Affirmation of Shelly
A. Leonard dated April 26, 2010 ("Leonard Aff."), at Exhibit "J". In an email dated April 3, 2007, Plaintiff stated that there is no way I can operate this store on 340 hours from [A]pril through [S]ept. [I] need approximately 370 hours per week. My body is already beat to heck from the physical work at this location and I'm supposed to be on light duty. [I] have always monitored my payroll here according to the sales and make adjustments for lower sales. [I] have 360 hours scheduled for this week. w/e 4/7/07 and will have 350 hours for the following week, and you will start to see that increase as the weather gets better and the camps open up. [O]ur store sells a lot of grocery items and putting away stock is a full time job when business picks up.
I do not know what you can do with [this] info, but I hope something.
See Leonard Aff. at Exhibit "C." In response to Plaintiff's request, Mr. Nucci replied that he would try to get her hours slightly increased and that he had to get approval in order to increase the scheduled hours. See Guy Aff. at Exhibit "F." Mr. Nucci never communicated in writing to Plaintiff the status of her request. See Nucci Dep. at 240. Mr. Nucci also warned Plaintiff after she made several requests for payroll budget increases that any manager who failed to abide by the new payroll budgets would be given "a written counseling." See id. Mr. Nucci never communicated to Plaintiff that she would be terminated if she failed to follow the new payroll budget. See id. at 209. Plaintiff scheduled her store for more than 340 hours for each week after this directive was issued.
On May 29, 2007, Plaintiff consulted a physician who placed her on job restriction wherein she would be out of work for six to eight weeks because of, among other things, lupus. On the same day, Plaintiff communicated this information to Mr. Nucci and sent the physician's note to Defendant's Human Resources Department. Six days after she communicated this information to Defendant, on June 4, 2007, Defendant terminated her. Defendant did not provide a formal written reason for the termination. It was not until Plaintiff commenced this action that, during depositions, Defendant attributed Plaintiff's termination to her purported "insubordination." See id. at 272.
A. Plaintiff's discrimination claim*fn5
Title I of the ADA prohibits an employer from discriminating against a qualified individual with a disability in the terms, conditions, and privileges of employment. See 42 U.S.C. § 12112(a). "A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case." Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998) (citation omitted).
In order to establish a prima facie case of discriminatory discharge, a plaintiff must show that: (1) her ...