The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Bernard Gaidasz ("plaintiff") brings this action alleging discrimination in employment on the basis of disability against his employer, the Genesee Valley Board of Cooperative Education Systems ("BOCES"), pursuant to the American with Disabilities Act, 42 U.S.C. §12101 et seq. ("ADA"). BOCES now moves for summary judgment dismissing plaintiff's claims (Dkt. #14). For the reasons stated, BOCES's motion is granted and the complaint is dismissed.
Plaintiff has been employed by BOCES as a custodial worker since November 2003. In February 2008, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that BOCES had subjected him to disability-based discrimination and retaliation. Specifically, he complained that BOCES had issued him a counseling memorandum charging him with "antisocial behavior," denied his application to transfer to a day-shift position, and temporarily transferred him a less desirable building. Plaintiff claimed that these acts were caused by discriminatory animus against plaintiff's alleged anxiety and depressive disorders, and/or occurred in retaliation for his complaints concerning unlawful discrimination. On January 26, 2009, the EEOC issued plaintiff a "right to sue" letter. This action followed.
I. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment brought pursuant to FED. R. CIV. PROC. 56, a court's responsibility is to determine whether there remain any issues to be tried. Duse v. Int'l Bus. Machs. Corp., 252 F.3d 151, 158 (2d Cir.2001). Summary judgment should be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. PROC. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law.' . . . An issue of fact is 'genuine' if 'the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir.2001), quoting Anderson, 477 U.S. at 248. See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
These general principles regarding summary judgment apply equally to discrimination actions. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993))(reiterating that trial courts should not "treat discrimination differently from other ultimate questions of fact."). Although courts should be cautious about granting summary judgment in cases where motive, intent or state of mind are at issue, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988); Montana v. First Federal Savings and Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir.1989), "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985)(summary judgment rule would be rendered sterile if mere incantation of intent or state of mind would act as a talisman to defeat an otherwise valid motion).
II. Plaintiff's Discrimination Claims
Title I of the ADA prohibits employers from discriminating again any "qualified individual with a disability because of the disability of such individual in regard to" any aspect of employment. 42 U.S.C. §12112(a). A plaintiff asserting a violation of the ADA must show that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability. See Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001). A disabled individual under the ADA is one who: "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 42 U.S.C. §12102(2).
Once plaintiff has established these elements for a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. The burden then returns to plaintiff, to supply evidence that the legitimate, nondiscriminatory reason offered by the defendant is pretextual. See St. Mary's Honor Center, 509 U.S. 502 at 508.
Plaintiff claims that he suffers from disabling anxiety and depression, and defendant does not appear to contest that point in its motion for summary judgment. Assuming arguendo that plaintiff suffers from an ADA-qualifying disability and was otherwise qualified to perform the requirements of his position as a custodial worker, and affording plaintiff the liberal interpretation and favorable inferences due to him as a non-movant, I nonetheless find that plaintiff cannot establish that he suffered an adverse employment action under circumstances giving rise to an inference of discrimination, and/or rebut defendant's legitimate, nondiscriminatory reasons for its actions. His claims of discrimination and retaliation must be dismissed.
A. Claim of Discrimination Relating to Counseling Memos Plaintiff's discrimination claims include allegations that he was issued a counseling memorandum and placed on a corrective action plan on or about October 10, 2007, and that he received a second counseling memo in or about October 2009.
Initially, there is some question whether counseling memoranda can constitute an adverse employment action. "While there is no bright-line rule as to what constitutes an adverse employment action, the Second Circuit emphasizes that 'not every unpleasant matter short of [termination or demotion] creates a cause of action.'" Ongsiako v. City of New York, 199 F. Supp. 2d 180, 186-187 (S.D.N.Y. 2002), quoting Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). While "[l]esser actions such as negative employment evaluation[s]" and formal reprimands may be adverse employment actions where they cause material changes in employment or injure a plaintiff's ability to secure future employment, Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002), plaintiff offers no evidence that the counseling memoranda at issue had any negative repercussions. It is undisputed that plaintiff's pay, benefits and position were unaffected by them. See generally Williams v. N.Y. City Housing Auth., 335 Fed. Appx. 108, 110 (2d Cir. 2009) (issuance of counseling memoranda, reduction in salary and denial of leave of absence do not constitute an adverse employment action); Stoddard v. Eastman Kodak Co., 209 Fed. Appx. 475, 479 (2d Cir. 2009) (single negative performance memorandum with no resulting change in work conditions is not an adverse employment action). Accordingly, they cannot be deemed an adverse employment action.
Even assuming arguendo that the counseling memoranda did constitute an adverse employment action, plaintiff has produced no evidence of circumstances suggesting that they were motivated by ...