United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Plaintiff, Barbara Givens ("Plaintiff"), brings this action pursuant to the American's with Disabilities Act of 1990, 42 U.S.C. § 12201, et seq. ("ADA"), and 42 U.S.C. § 1981 ("§ 1981"), alleging discrimination and retaliation on the basis of a disability and her race. Specifically, Plaintiff alleges that she was denied a reasonable accommodation for a skin condition (permission to wear moisture-wicking pants at work) and that she was retaliated against for seeking this reasonable accommodation. She further alleges that she suffered retaliation for complaining about harassment she suffered based on her disability and her race.
Defendants move for summary judgement contending that Plaintiff has not established a prima facie case of discrimination or retaliation, and that they are entitled to judgment as a matter of law. Although Plaintiff opposes the Defendants' motion, she has withdrawn her claims under 42 U.S.C. § 1981 for racial discrimination, and has withdrawn her civil rights claim against defendant Perna. For the reasons discussed below, the Court finds that Plaintiff has failed to state a claim for disability discrimination, and grants Defendants' motion for summary judgment.
The following facts are taken from the Plaintiff's Complaint, the Defendants' Local Rule 56 (a) Statement of Facts, Plaintiff's Response to Defendant's Statement of Facts, and the Court's review of the entire record. (Docket No. 16).
Plaintiff filed this action on December 1, 2011. Plaintiff was issued a summons for the individual defendant, Daniel Perna, which was delivered by a process server to Rebecca Alcock, "a person of suitable age and discretion...[at the] defendant['s] actual place of business and employment." (Docket No. 5). The summons and complaint were not mailed to Perna. In his Answer, Perna asserted the defense of lack of personal jurisdiction.
Plaintiff is a childcare worker for the Monroe County Children's Center, a detention center for youth. Plaintiff has worked at the Children's Center since 1988. In 1993, she became a senior childcare worker and is a supervisor of the childcare workers. Both black and white individuals are employed at the Children's Center. During the relevant time period, 2011, Daniel Perna was the program coordinator and supervised the childcare supervisors, including Plaintiff.
Plaintiff is a diabetic and suffers from folliculitis in her groin area: a secondary condition to diabetes. To treat the folliculitis, Plaintiff wears loose-fitting, moisture-wicking pants.
The County adopted a Personal Appearance Policy that prohibits its employees from wearing athletic pants. Prior to October 2010, the Personal Appearance Policy was loosely enforced. Subsequently, in October 2010, a new Personal Appearance Policy was adopted and the County requested that it be enforced. Perna states that after this new policy was adopted, he enforced the policy against all individuals, regardless of color, both black and white, who violated the policy. For example, he required that Gabriel Ryan, a black female childcare worker, remove a hooded sweatshirt. Part of Givens' job was also to enforce the dress code against her subordinates. On one occasion, Perna asked Plaintiff to enforce the policy against Nick Leisenring, an Asian male childcare worker, who was wearing shorts. However, Plaintiff recommended that Leisenring be allowed to continue working because the Children's Center would otherwise be short-staffed if he left.
On February 12, 2011, Perna advised Plaintiff that she was in violation of the dress code for wearing athletic pants to work. He advised Plaintiff to contact the County's ADA Compliance Officer, Julie Allen, to request an accommodation to the dress code, but he told her that she needed to set a good example for her subordinates by following the policy. He asked her whether she could buy larger pants to accommodate her condition. Several days later, Plaintiff states that Perna again approached her about her pants. He told her she would be sent home if she continued to wear the pants, unless she requested an accommodation. Plaintiff thereafter requested an accommodation on February 18, 2011, and she was allowed to wear the athletic pants to work pending the review of her request. On March 15, 2011, Plaintiff was granted the accommodation she requested, which permitted her to wear moisture-wicking pants to work, and the County also agreed to reimburse her $90 for the cost of the pants.
Plaintiff now claims that the pants she was allowed to wear were made out of polyester, and were not moisture-wicking. It is undisputed, however, that Plaintiff never complained about the pants after she was granted permission to wear them and was reimbursed for their cost. Moreover, although Plaintiff now claims that the pants were not moisture-wicking, she has provided no evidence to support that claim, and no evidence that pants made out of polyester can not be moisture-wicking.
Julie Allen also asked Plaintiff to send her details of the occasions when she felt that she was harassed for being out of compliance with the policy. Plaintiff sent Julie Allen a detailed list of several interactions with Perna, including the instances he told her she was out of compliance and that she should request an accommodation. Additionally, Plaintiff complained of an incident in which Perna spoke to another employee over a two-way radio and implied that Plaintiff was disrespectful. And that other employees also heard this conversation over the radio. Plaintiff also complained that Perna asked her to remove a sweatshirt that was out of compliance with the dress code in early March 2011. She also stated that Perna said to her supervisor, "why can't you control Barb like [her previous supervisor] did?". Plaintiff also related an incident in which a computer was misplaced. When Perna spoke to Plaintiff about the computer issue he told her that she was being disrespectful.
Plaintiff's complaints were sent to Labor Relations Manager Thomas Vasey, who followed up with Plaintiff in May, 2011. He asked her whether her work environment had improved since she was granted the ...