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Anthony Parinello v. Bausch & Lomb

April 17, 2013


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge



Plaintiff Anthony Parinello ("Parinello" or "Plaintiff"), represented by counsel, brings this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and the New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq., against his former employer, Bausch & Lomb, Inc. ("Bausch & Lomb" or "Defendant"). Parinello claims that he was disabled due to clinical depression, and that Bausch & Lomb retaliated against him for complaining that he suffered discrimination in the workplace based upon his perceived disability. Parinello also contends that Bausch & Lomb improperly terminated him based solely upon his disability.*fn1

Defendant now moves for summary judgment, arguing that there are no disputed issues of material fact and that Plaintiff, as a matter of law, has not established a prima facie case of discrimination or retaliation. Plaintiff opposes Defendant's motion contending that there are contested issues of material fact sufficient to withstand summary judgment. For the reasons set forth below, Defendant's motion for summary judgment is granted, and Plaintiff's Complaint is dismissed in its entirety.


Since August 1987, and at all times relevant to this action, Parinello was a full-time employee of Bausch & Lomb. Before his termination in March 2009, Parinello was working as a Technician V in the Lens Machining Development Department at the Optics Center in Rochester, New York.

Prior to March of 2008, Parinello was part of a working group consisting of three technicians, including himself, and one engineer. In March of 2008, six more technicians were added to the group due to an anticipated increase in workload. This increase resulted from Bausch & Lomb's undertaking the development of a new interocular lens. Michael Clark ("Clark") was the group's manager, and the group's supervisor was Anthony LaRuffa ("LaRuffa").

In May of 2008, Parinello became a Group Coordinator for the machine room (referred to by the parties as "the Lab"), responsible for coordinating work flow with the technicians and ensuring timely completion of machining work assignments. However, Parinello did not have supervisory authority over the individuals in the machine room group, nor did he receive any additional compensation or benefits as a result of assuming Group Coordinator responsibilities.

When Parinello served as Group Coordinator for the Lab, he believed that the Group Coordinator for the clean room located in the same area was "terrible" at her job. Parinello Dep. at 44. On several occasions, Parinello stated to others in the Lab that if the clean room Group Coordinator worked for him, he would fire her. Id. at 50-51.

In early August of 2008, Parinello sent an e-mail to the group manager Clark to update him on the group's progress. In the e-mail, Parinello also included his personal assessment of the clean room's Group Coordinator. In particular, he commented, "I think there is a need to correct this problem and replace her with someone else asap." See Declaration Peter Jones ("Jones Decl.") (Dkt #26-2), Exhibit ("Ex.") 4. Several days later, Parinello forwarded the e-mail recommending the removal of the clean room Group Coordinator to the entire work group, even though he was not responsible for the Group Coordinator's performance and did not have any supervisory responsibility over her.

On August 12, 2008, Parinello was issued an Employee Disciplinary Report and a Verbal Warning. See Jones Decl., Ex. 5.

The bases for the disciplinary report were his e-mail regarding his criticism of the clean room's Group Coordinator, along with previous verbal altercations he had had with other employees. In particular, the Verbal Warning referenced Parinello's previous verbal altercations, one in April 2008, and another in August 2008, with his two technician co-workers. In both incidents, Parinello became overly loud or shouted at his co-workers about issues over which Parinello had no supervisory control. The Verbal Warning also stated that during the previous year, Parinello had received coaching and counseling from management (specifically, Clark) that his interpersonal interactions and communications with his co-workers must improve. See Jones Decl., Ex. 5. Parinello testified at his deposition that Clark had counseled him regarding the need to improve his interactions with co-workers "no more than three times." Parinello Dep. at 55.

At the time the Verbal Warning was issued, Parinello did not complain that it was issued for discriminatory or retaliatory reasons. The Verbal Warning contained a section for employee comments, and Parinello signed it. He did not offer any comments disputing its fairness, however.

On August 12, 2008, Parinello voluntarily stepped down from his role as Group Coordinator for the machine room. Parinello attributed his decision to the stress of the job and to his belief that management had failed to properly address his concerns about the quality of the work by the Group Coordinator for the clean room. Parinello did not suffer any diminution in pay as a result of his decision to step down.

Shortly thereafter, Parinello drafted an apology to the work group regarding his actions. He expressed his "deepest and most sincere apology" for his "poor and hurtful statements" and his "poor actions." Parinello Dep. at 64-65. Parinello again attributed his actions to "added stress" and his "challenges in dealing with many different work styles" that all of his co-workers possessed. Id. at 64-65.

In addition to apologizing to the work group, Parinello attended three Employee Assistance Program counseling sessions that he testified were "helpful." Parinello Dep. at 60. In September of 2008, all the technicians in the lab, including Parinello, attended an all-day Social Styles Training which covered effective ways for resolving interpersonal conflicts, as well as strategies for avoiding them. Parinello testified that the training was beneficial to him and others in the work group. Id. at 61-62.

In November of 2008, Clark advised Parinello that his performance was not meeting the expectations set forth in the Verbal Warning. Specifically, Parinello was not meeting expectations as far as treating co-workers with respect, communicating effectively, and dealing constructively with conflict. Clark informed Parinello that he was going to be placed on the 90-day Performance Improvement Plan ("PIP"), which initially was to cover the period from November 4, 2008, to February 4, 2009.*fn2 The PIP specifically identified the following problematic behaviors by Parinello: public displays of disrespect (rolling his eyes and making disrespectful comments), making inappropriate e-mail comments about co-workers, engaging in aggressive communication with co-workers (raised voice, disrespectful comments, physical intimidation), being confrontational about work assignments, and intimidating others into doing things his way. See Jones Decl., Ex. 8. The PIP also noted that Parinello was overstepping his work role and responsibilities in the following ways: making derogatory comments about co-workers' actions, openly questioning and challenging actions of his co-workers, visibly demonstrating frustration with other co-workers' work styles, and observing co-workers perform their duties and reviewing their work without being given authority to do so. Id.

Clark informed Parinello that failure to meet any of the expectations in the PIP would result in further disciplinary action, up to and including termination of his employment. At the time of being placed on the PIP, Parinello did not express any disagreement about his placement on the PIP.

On November 12, 2008, Clark met with Parinello to discuss his progress under the PIP, and noted that Parinello had had a negative interaction with a co-worker since being placed on the PIP. Parinello testified that there had been a change in protocol, and he became "frustrated" and "upset," lost "some control," and raised his voice at the co-worker. Parinello Dep. at 112-13.

The next follow-up regarding Parinello's progress on the PIP was on December 10, 2008. On the PIP, Clark noted that since the last follow-up, Parinello again demonstrated disrespectful behavior towards his co-workers. In the December 2, 2008 incident, Parinello changed a radio station without talking to all the co-workers who were listening to the radio. When the co-worker asked Parinello what he was doing, he responded by "whistling and snapping his finger at her." Parinello Dep. at 119. Parinello sent an e-mail to Clark on December 9, 2008, asking to have the "disrespectful behavior" notation removed from his PIP. In the e-mail, Parinello acknowledged that he had previously engaged in poor behavior towards his co-workers, but that with regards to the radio incident, he "was not attempting to disrupt [his co-worker] with [his] whistling and waiving [his] finger, ([he] did not snap [his] fingers), [he] did this only to get her attention." Jones Decl., Ex. 11; see Parinello Dep. at 119-22.

Also on December 10, 2008, the same day as his PIP follow-up, Parinello was diagnosed with depression for the first time.

Parinello Dep. at 146-48. Parinello informed Clark and Bausch & Lomb's nurse about his depression sometime thereafter in December 2008. This was the first time that anyone at Bausch & Lomb had been notified about Parinello's depression. Shortly after being diagnosed, Parinello took a short-term disability leave of absence from December 12, 2008, through January 20, 2009.

On January 20, 2009, Parinello was released to return to work without any medical restrictions. Parinello did not tell any of his co-workers about his depression until he returned to work in January of 2009, and at that time, only a select few of his co-workers knew about it. Parinello never requested Bausch & Lomb to make any accommodation for his depression, and he did not take any additional time off to be treated for his depression.

On February 3, 2009, Parinello provided Bausch & Lomb with a written complaint addressed to Clark, LaRuffa, and Kim Joy ("Joy"), the Director of Human Resources. In the complaint, Parinello stated that since he had returned to work from his short-term disability leave, he had experienced "continued retaliation and harassment." Jones Decl., Ex. 15; see Parinello Dep. at 187-88. He then stated that he was going to "invoke [his] rights under the FMLA ADA [sic] subject to Retaliation and Harassment," and that his "legal counsel suggest[ed] immediate actions to correct these issues and to stop the retaliation and harassment outright." Id.

The same day, Clark and LaRuffa met with Parinello to seek clarification of his harassment and retaliation allegations, which Parinello explained consisted of his not being provided with the same information as everyone else in the group, as well as not receiving a sufficient amount of work. He also stated that a co-worker's ...

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