United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Plaintiff Susan Montimerano ("Montimerano" or "Plaintiff"), brings this action pursuant to the Age Discrimination in Employment Act of 1967, ("ADEA")(codified at 29 U.S.C. § 621 et. seq.), the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12201 et seq. ("ADA"), and the New York State Human Rights Law ("HRL") (N.Y. Exec. Law § 209, et seq.), alleging that her former employer, Wegmans Food Markets, Inc. ("Wegmans" or "Defendant"), discriminated against her on the basis of her age and an alleged disability.
Defendant moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), seeking dismissal of Plaintiff's complaint in its entirety. Dkt. No. 22. Although Plaintiff requested and was granted an extension of time to file her response (Dkt. No. 30), she failed to do so and Defendant's summary judgment motion was deemed submitted without oral argument on February 3, 2014 (Dkt. No. 31). For the reasons set forth below, Defendant's unopposed motion is granted and Plaintiff's complaint is dismissed in its entirety with prejudice.
The following facts have not been controverted by Plaintiff, and accordingly, are deemed admitted for purposes of this motion. Local Rule of Civil Procedure 56.1 requires that a party moving for summary judgment include with its motion a "separate, short, and concise statement of the material facts to which the moving party contends there is no genuine issue to be tried." See Local Rule 56.1(a). "When a party has moved for summary judgment  and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp. , 964 F.2d 149, 154 (2d Cir. 1992). Although the Plaintiff was given notice and the opportunity to file a response to the defendant's motion for summary judgment, she failed to do so and therefore, the Defendant's Statement of Facts is deemed admitted. See Cassidy v. Nicolo , 2005 U.S. Dist. LEXIS 34160, 2005 WL 3334523, *2 (W.D.N.Y. 2005) (facts asserted by the defendants deemed admitted where the plaintiff failed to file a response).
Plaintiff was employed by Wegmans from 1983 to 2009, where, for the majority of that time, she worked as Team Leader of the Deli Department at the Chili Paul store. As Team Leader, Plaintiff was responsible for supervising deli staff, sending orders for deli items, maintaining inventories, writing schedules, and providing customer service. Plaintiff reported to Deli Manager Joe Ingoglia ("Ingoglia"), who reported to Perishable Manager Tomas Jacobs ("Jacobs"), who, in turn, reported to store manager Robert Godula ("Godula").
In July 2008, Plaintiff was granted medical leave by Defendant and underwent shoulder surgery. In October 2008, Plaintiff returned to work with a note from her doctor stating that she had no work restrictions.
Throughout her employment, including prior to her medical leave in 2008, Plaintiff had difficulty getting along with other Wegmans employees and manager Ingoglia, and was counseled by management on at least two occasions for her reported behavior. In May 2009, based on other employees' complaints about Plaintiff, Jacobs and Human Resources Representative Lori Martinez ("Martinez") commenced an investigation into Plaintiff's conduct, in which they interviewed Plaintiff and several employees in the Deli Department. Upon completion of their investigation, Plaintiff's employment was terminated effective May 19, 2009.
Thereafter, Plaintiff filed a charge of age and disability discrimination with the Equal Employment Opportunity Commission ("EEOC"), and this civil action subsequently followed.
I. Defendant's Motion for Summary Judgment
Rule 56© of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if 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." When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris , 550 U.S. 372, 380 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that ...