CHARLES J. SIRAGUSA, District Judge.
This employment discrimination case is before the Court Defendant's motion for summary judgment, filed on December 19, 2013,
Defendants complied with L.R. Civ. P. 56 and filed a statement of material facts, Dec. 19, 2013,
Plaintiff alleges that Defendant violated her rights under the Age Discrimination in Employment Act of 1967 ("ADEA") and Title VII of the Civil Rights Act of 1964 (race based claims). Compl. at 1. Plaintiff's specific claims from the Complaint are: failure to provide her with reasonable accommodations to the application process; failure to provide her with reasonable accommodations so she could perform the essential functions of her job; harassment on the basis of unequal terms and conditions of her employment; retaliation because she complained about discrimination or harassment directed toward her; and hostile work environment. Compl. at 3. She claims discrimination based on her race, age (date of birth June 1955) and national origin. Compl. ¶ 14.
Plaintiff commenced employment with Defendant on February 25, 2008. She alleges that acts of discrimination occurred on several dates in 2010 and 2011. See Compl. at 1. She was terminated on February 3, 2012. Def. Appx. at 447-50. Defendant's lengthy statement of facts sets out detailed, almost day-to-day assessments of Plaintiff's performance, while Plaintiff's Counter-Statement provides the minutia of contradictory facts. Many of Plaintiff's counter-statements are not supported by citation to evidentiary proof in admissible form, and her responses to some of Defendant's assertions of fact are pages long, for example, ¶ 6 (Compare Def.'s Statement: "MVP Service Corp. maintains both an Equal Opportunity Policy and an Unlawful Harassment Policy that prohibit harassment and discrimination on race, gender, age, and any basis protected by law, as well as retaliation for making any complaint of harassment or discrimination. Rivera-Platt Decl. at ¶ 5; Appendix ("App.") at 309-11." to Pl.'s Counter-Statement which begins at page 6 and includes charges that Plaintiff was treated unequally that continue until page 17). Where Plaintiff's Counter-Statement violates L.R. Civ. P. 56, the Court has disregarded it.
Defendant provides health care insurance and administrative services, including timely and accurate processing of claims. Plaintiff disputes that white supervisors were required to timely process claims. Pl.'s Counter-Statement ¶ 3. However, her citation to Def. Appx. at 56 reveals only hand-written notes with no evidentiary foundation listing the names, "Caroline" on one line, "Faith Boswell" on the next and "Linda Wallace" on a third, and under those lines, "write up for being 32 days late paying claim." Def. Appx. at 56. The page contains no evidence of who wrote the notes, or what they mean. Defendant states that Plaintiff was hired by Debbie Groth, MVP's Claims Manager of Government Programs, as a claims processor in the claims processing department on February 25, 2008. Subsequently, on January 10, 2010, as a result of a department restructuring, Plaintiff reported directly to Groth, whereas previously, she reported to a different supervisor. Def.'s Statement ¶¶ 8-10. Though Plaintiff disputes these statements, she provides no citation to evidentiary proof in support of her disagreements.
On March 22, 2010, Debbie Groth promoted Plaintiff to a team leader position in the government programs department. Def. Appx. at 368. At a meeting with Debbie Groth and Jason Kurz in April 2010, Kurz called Plaintiff a liar and, according to Plaintiff, who was Kurz's supervisor, Kurz "only wanted to do what he wanted to do and not what was actually assigned to him." Joiner Dep. 38:9-10 (Def. Appx. at 154). At her deposition, Plaintiff agreed that it was unacceptable for an employee to do what he wanted to do and not what his supervisor wanted him to do. Id. 40:5-9 (Def. Appx. at 156). Following the meeting, Plaintiff asked Groth for her old position back, and Groth responded, "It's going to be hard, but you're doing a good job. I want you to stay there." Id. 40:15-17 (Def. Appx. at 156).
On May 26, 2010, Groth called another meeting with Plaintiff concerning one of Plaintiff's subordinates, Sandy Langmaid. Joiner Dep. 44:18-22 (Def. Appx. 160). According to Plaintiff, Langmaid had an issue with the way Plaintiff was structuring and prioritizing her workload. During the meeting, Groth encouraged Plaintiff "to increase the communication between" herself and Langmaid. Id. 45:20-21 (Def. Appx. 161).
On June 24, 2010, Groth called a meeting with Plaintiff and Kellie Traver, Associate Director of Rochester Operations, to discuss concerns Traver's staff had brought to her attention. Id. 45:22-46:11 (Def. Appx. 161-62). With respect to this meeting, Plaintiff testified that she recalled a concern about the fact she had asked Kurz to return to work while he was having a conversation with two people on the floor, and a complaint by Sarina Miller-Richardson that Plaintiff treated her disrespectfully. Id. 46:8-23 (Def. Appx. 162).
Plaintiff testified that she did not recall an October 5, 2010, "due process" meeting with Groth to discuss an email that Plaintiff had sent to another employee, id. 47:22-48:14; however, she did recall having several meetings with Groth regarding complaints from employees about how Plaintiff treated them when asking them questions, id. 48:15-21 (Def. Appx. 164). At her deposition, Plaintiff indicated that she reviewed an email she sent on October 4, 2010, at 4:02 p.m. to Carolyn Stuckey, in which Plaintiff wrote, "You made an issue on this from Friday, when I were [sic] playing with you." Joiner Dep. 49:17-25 (Def. Appx. 165). Plaintiff stated she forwarded the whole email string to several employees, including her supervisor, Groth, "[b]ecause Debbie Groth wasn't telling the truth." Id. at 50:18-19 (Def. Appx. 166). Asked to explain, Plaintiff responded saying:
Joiner Dep. 51:8-13 (Def. Appx. 167). Following several questions and answers that simply confused the issue more, opposing counsel asked the following follow-up questions and received Plaintiff's answers:
A. Because Debbie Groth's inconsistency with not telling the truth.
Q. Are you testifying that you had no issue with Carolyn Stuckey?
A. Carolyn Stuckey? I have no issue with Carolyn Stuckey.
Joiner Dep. 53:8-54:8 (Def. Appx. 169-70).
On October 5, 2010, Erin Banach, a Quality Assurance Supervisor, wrote to Groth to complain about the way in which Plaintiff was treating Banach's employees. Def. Appx. 374. Banach's email forwarded an email she had received from Kimberly Bremer, a senior quality assurance and defect tracking employee, also dated October 5, 2010, in which Banach wrote:
Def. Appx. 374. Plaintiff addressed this issue in her EEOC filing, stating:
Def. Appx. 18.
Based on Banach's complaint set out above, Groth held a "due process" meeting with Plaintiff on October 5, 2010. As documented in a Corrective Action Form, Def. Appx. 369-70, Groth and Plaintiff met with Kurz in April, Langmaid in May, and Traver in June, to discuss Plaintiff's conduct at MVP. Groth's conclusion, which Plaintiff refused to sign, or submit comments on, was as follows:
Def. Appx. 370. Interestingly, Plaintiff comments in her Counter-Statement that the representation in the document described above is one-sided. As Groth noted on the form, however, Plaintiff refused to submit comments to Groth at the time of the meeting, or within five days after it. Def. Appx. 370. Plaintiff, though, did admit at her deposition that the warning outlined above was read to her and that she was warned not to treat her coworkers disrespectfully. Joiner Dep. 56:24-57:14 (Def. Appx. 172-73). In her defense, Plaintiff related that the three employees about whom she was asked at her deposition who accused her of being disrespectful were wrong. Id. 58:6-8. Plaintiff was unable to recall any other coworkers who were correct when they accused her of acting disrespectfully. Id. 58:9-15 (Def. Appx. 174).
Defendant points to a document entitled "Status Agenda for (Date) 1/26/12," Def. Appx. 406. The document appears to be a meeting agenda and has handwritten notations as well as check marks on some of the items. Plaintiff contends that this document,
Def. Appx. 286. Evidently, out of twenty-four weekly status meetings with Groth, the January 26, 2012, meeting is the only one Plaintiff contends did not occur. C.f. Def.'s Statement ¶ 27,
Pl.'s Counter-Statement ¶ 29. The statement above is indecipherable and does relate to the corresponding statement, supported by evidentiary proof, made by Defendant.
On November 11, 2010, Goth sent Plaintiff an email with the subject line, "FW: Daily assignments." It concerned claims that had been pending for several days and on which Plaintiff's staff was supposed to be working. Joiner Dep. 84 (Def. Appx. 200). Plaintiff was asked the following questions and made the following responses with respect to Groth's email:
Joiner Dep. 84:19-86:9 (Def. Appx. 200-02). In her Counter-Statement, Plaintiff states that "the statement neglects to state the answer given was due to the labor loaning of my staff." Pl.'s Counter-Statement ¶ 30. In the deposition transcript pages to which Plaintiff cites in support of her Counter-Statement, she testified she copied Kellie Traver on the email to Groth,
Joiner Dep. 99:15-20 (Def. Appx. 215).
Plaintiff underwent another review on December 8, 2010, in which were noted several areas in which she needed development. The performance appraisal was separated into three parts: organizational behaviors; quality & quantity of work; and key job responsibilities. Def. Appx. 417-18. Each of those three parts contained several lines relating to specific requirements followed by a rating of from one to four, one being "needs development," and four being "exceeds requirements." Id. Plaintiff's overall score was 1.60. As an example of one of the low scores, Plaintiff received a score of "1" in
Def. Appx. 417. In the action plan section, her reviewer, Goth, wrote the following:
Def. Appx. 418. One of the items Groth highlighted in the form concerned her requirement that Plaintiff respond to all emails within forty-eight hours, even if Plaintiff could not resolve the problem. Plaintiff testified at her deposition that she received between "2 to 300 e-mails a day" and that "it was impossible to answer all e-mails" "the system wasn't equipped to handle it itself" and she "kept being locked up in e-mail jail." Joiner Dep. 77:16-20 (Def. Appx. 193).Plaintiff did not sign the form, but merely indicated in a handwritten note that she would be "following up w/Annelli for further discussions" and signed the note on December 8, 2010. Id. In her Counter-Statement, Plaintiff states that this review of December 8, 2010, was the first she had had since assuming the manager position on March 21, 2010, and that her "stats prove it [she has] been eliminating that huge volume of aging claims (24,483+-) that Linda Gallagher had left behind." Pl.'s Counter-Statement 25. In support of her Counter-Statement, Plaintiff cites to "Pl.'s Aff., Tab 47; statics data shows we're moving out of the red." The Court has reviewed Plaintiff's Affidavit in Support of Opposition to Summary Judgment, Jan. 23, 2014,
On January 26, 2011, Plaintiff attended another "due process" meeting with Groth, Prince and Aneli Rivera-Platt, director of employee relations and development. Def. Appx. 419-20. The Corrective Action Form, dated January 31, 2011, noted several deficiencies on Plaintiff's part, particularly focusing on the requirement for a 48-hour turnaround on emails. The form also outlined the October 5, 2010, meeting and others concerning Plaintiff's unprofessional behavior. One notation pointed out that Plaintiff received an email dated January 20 at 1:55 p.m., read it at 2:17 p.m., and never responded to it. The email asked claims supervisors if they needed to attend a meeting concerning scanning issues and notes that as a result of her unresponsiveness, "she was not invited to the meeting and her team's concerns were not represented." Def. Appx. 420. The form also notes a similar nonresponsiveness to an email on an personnel matter, which resulted in a delayed due process meeting for another employee. Id. The "Action/Consequences" portion of the form reads similarly to the action required of her as a result of the December 2010 due process meeting. The section for employee comments has a handwritten notation, "I have submitted [illegible] response to HR Director." Id. Her Counter-Statement also refers back to paragraph six, subparagraphs (d) through (n). In subparagraph (d), Plaintiff states that she was terminated with thirteen claims thirty days or more old, whereas Linda Gallagher, the supervisor before her, was promoted with 26,483+- claims in backlog. Pl.'s Counter-Statement at 6. Plaintiff makes reference to using "selected Julian Dates," and claims that Defendant lied about her backlog of claims upon her termination. However, she does not explain what she means by using "selected Julian Dates." Id. at 7. On page 8 of her Counter-Statement, Plaintiff questions why her supervisor, Groth, did not do a better job of handling Plaintiff's claims while Plaintiff was on vacation. The remaining subparagraphs of paragraph six contain details about claims processing that Plaintiff evidently submits to show that she worked diligently, but that others always thwarted her efforts, whereas white employees were held to different standards. In one sub-subparagraph on page 11, she states, "[t]he white Supervisors had items in their service matrix basket up to 117+- days; etc. no written warnings/due process" and cites to Exhibits 12-17. Unfortunately, the document Plaintiff submitted contains 157 pages in total, and none appear to be marked with an exhibit number.
The Court will refrain from a further detailed assessment of the competing statements of fact in this decision. Nevertheless, it has read and reviewed all 44 pages of Defendant's statement of facts and the corresponding portions of Plaintiff's Counter-Statement.
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert. denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. "[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not `genuine' issues for trial." Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed. R. Civ. P. 56(c)(1)(B). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
Of course, it is well-settled that courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (citations and internal quotations omitted). However, the general rule holds and a plaintiff may not defeat a motion for summary judgment merely by relying upon "purely conclusory allegations of discrimination, absent any concrete particulars which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (citations and internal quotations omitted); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
In Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 210 (2d Cir. 1999) the Second Circuit concisely set out the standards of law governing disparate claims under Title VII and the ADEA, stating:
Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d at 316-17.
With regard to whether an employee is qualified for a position under the ADEA, the law is clear: "an individual is otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation." Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995).
With respect to Plaintiff's claim of a hostile working environment, the standard was set out by the Supreme Court in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L. Ed. 2d 295 (1993):
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L. Ed. 2d 295 (1993). Whether the environment may be considered sufficiently hostile or abusive to support a hostile work environment claim is to be measured by the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interferes with an employee's work performance." The Court may also take into account any psychological harm suffered by the employee, but "no single factor is required." Harris, 510 U.S. at 23.
Finally, with regard to Plaintiff's retaliation claims, in order to present a prima facie case, a plaintiff must provide evidence sufficient to permit a rational trier of fact to find that she engaged in protected activity, or opposed conduct that is illegal under Title VII or the ADEA, that the employer was aware of her protected activity or opposition, that the employer took adverse action against the plaintiff and that a causal connection exists between the protected activity and the adverse action, in other words, that a retaliatory motive played a part in the adverse employment action. See Kessler v. Westchester County Dept. of Social Services, 461 F.3d 199, 205-06 (2d Cir. 2006).
In this case, Plaintiff's opposition to summary judgment appears predicated on the belief that she may avoid judgment by offering conjectures, unsupported by any fact of evidentiary value in a multitude of irrelevant suppositions and innuendo contained in prolix affidavits and hundreds of pages of exhibits. None of these raise an issue of fact sufficient to defeat the motion for summary judgment. Although she disputes Defendant's contentions of unprofessional conduct or that she did not complete work or respond to email, she points to no evidence that Defendants' actions were undertaken with a discriminatory intent, or in retaliation for complaining of discrimination.
Plaintiff has failed to raise a prima facie case pursuant to ADEA, Title VII, or retaliation. Plaintiff's specific claims from the Complaint include matters that have no support in her pleading itself, let alone in the papers she submitted in opposition to the instant motion: failure to provide her with reasonable accommodations to the application process; and failure to provide her with reasonable accommodations so she could perform the essential functions of her job. Though she claims discrimination based on her race, age and national origin, Compl. ¶ 14, she presents no evidence or allegations of national origin discrimination.
Each of Plaintiff's claims is subject to the McDonnell Douglas
Petrisch v. JP Morgan Chase, 789 F.Supp.2d 437, 450 (S.D.N.Y. 2011). In this case, Plaintiff makes a conclusory statement, Def. Appx. 455, that an email dated March 31, 2011, the content of which she fails to detail, was in retaliation. Her claim is without any factual background, other than to state that, "Plaintiff `exempt' benefits being taken away after the Plaintiff filing with EEOC. Discriminatory, Retaliatory." Without more, it is impossible to determine who sent the email, and what, if any, action was taken which Plaintiff concluded was in retaliation for her having filed an EEOC complaint. Further, Defendant provided a copy of a memorandum sent to Plaintiff shortly after she filed her EEOC complaint explaining Defendant's policy against retaliation. Def. Appx. 439.
Plaintiff has made the Court's review more difficult by the voluminous, vague and repetitive papers submitted in response to Defendant's motion. Plaintiff's response to Defendant's 44 page statement of facts is 157 pages in length. Plaintiff submitted an additional 94 pages in an affidavit opposing summary judgment, a memorandum of law 27 pages in length, and an additional 224 pages in another affidavit opposing summary judgment. ECF Nos. 58, 59 & 60. The volume of paper is "a prolixity seemingly designed to obscure rather than to illumine the events giving rise to this lawsuit." Pross v. Katz, 784 F.2d 455, 456 (2d Cir. N.Y. 1986). Her references to "tabs" failed to produce any evidentiary support for her conclusory statements, and even during oral argument, the Court was unable to ascertain to what "tabs" referred in her papers. In short, Plaintiff has failed in her burden to raise a material issue of material fact precluding summary judgment, and has failed in her burden under McDonnell Douglas to show that Defendant's proffered non-discriminatory reasons for disciplinary proceedings and termination were false and the real reason was discrimination or retaliation.
Defendant's motion for summary judgment,
IT IS SO ORDERED.
(3)