Baker v. Avi Foodsystems, Inc.

• Decision Date: 06 December 2011
• Docket Number: 10-CV-00159(A)(M)
• Parties: BARBARA D. BAKER, Plaintiff, v. AVI FOODSYSTEMS, INC., Defendant.
• Court: U.S. District Court — Western District of New York

BARBARA D. BAKER, Plaintiff, v. AVI FOODSYSTEMS, INC., Defendant.

10-CV-00159(A)(M)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

December 6, 2011

REPORT AND RECOMMENDATION

Defendant AVI Foodsystems, Inc. ("AVI") has moved for summary judgment [51].¹ This motion, being dispositive, has been referred to me by Hon. Richard J. Arcara for a Report and Recommendation [6]. Oral argument was held on October 24, 2011. For the following reasons, I recommend that AVI's motion for summary judgment be granted.

BACKGROUND

Plaintiff commenced her employment with AVI on March 13, 2006, as the Office Manager for its Buffalo, New York branch. AVI's Statement of Material Facts [51-2], ¶1. At the time, she was 46 years old. Id., ¶3. On October 16, 2007, plaintiff commenced a leave of absence under the Family Medical Leave Act ("FMLA") for a herniated disk in her back. Id., ¶¶22-23. On December 26, 2007, plaintiff submitted a work release from her physician indicating that she could return to work on January 2, 2008, with the following restrictions, which would continue through May 2, 2008:

• No lifting greater than 15lbs.

• No repetitive bending or twisting.

• No operation of vibratory/mechanical equipment.

• No sitting or standing longer than two hours at a time (without a break).

• Sedentary work only.

• Working up to eight hours per day. Id., ¶33.

AVI had an unwritten policy that "if an employee was subject to restrictions that prevented him or her from performing their full job duties following the exhaustion of FMLA . . ., the employee would be separated unless the restrictions stemmed from a work-related injury or the employee was disabled under the ADA or applicable state law and entitled to reasonable accommodation." Harris Declaration [52-16], ¶10. When plaintiff attempted to return to work on January 2, 2008, she was not permitted to do so pursuant to this policy. Plaintiff's Affidavit [58], ¶86. According to plaintiff, her January 2, 2008 physical therapy appointment was also cancelled due to a change in her insurance benefits by AVI. Id., ¶¶88-89.

Plaintiff's 12 weeks of FMLA leave expired on January 8, 2009. AVI's Statement of Material Facts [51-2], ¶32. On the following day, January 9, 2008, plaintiff was terminated from her employment with AVI by Michael Spayd, AVI's Leave Administrator, and Heather Harris, AVI's Employee Relations Manager, pursuant to AVI's policy because her medical restrictions prevented her from working more than eight hours per day and was not considered to be disabling under the ADA. Id., ¶39. When she was terminated, plaintiff was designated as eligible for re-hire, but never sought employment with AVI following her termination. Id., ¶41.

Following an investigation, the New York State Division of Human Rights issued a Determination and Order on April 28, 2009, concluding that there was no probable cause to believe that AVI discriminated against plaintiff on the basis of race or her alleged disability. AVI's Statement of Material Facts [51-2], ¶51. Plaintiff commenced this case pro se by Complaint filed March 1, 2010 [1]. After plaintiff was assigned counsel [20], she filed a Second Amended Complaint [36], alleging failure to accommodate and discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. ("ADA"), racial discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000-e, et seq. ("Title VII"), violation of the FMLA, and age discrimination in violation for the New York State Human Rights Law, NY Executive Law §296 ("HRL"). Following the close of discovery, AVI moved for summary judgment [51].

Aside from this case, the Equal Employment Opportunity Commission ("EEOC") commenced suit against AVI in the Southern District of Ohio, Eastern Division, which resulted in a Consent Decree approved by the Court on July 28, 2009. Consent Decree [52-20]. The Consent Decree applied to individuals who were separated from employment with AVI since April 11, 2006 "after their FMLA . . . leave had been exhausted, and who (i) either were ready to return to work immediately or would have been ready to return to work with extended or additional leave as a reasonable accommodation and (ii) could have performed the essential functions of the job without or without reasonable accommodation but (iii) were not allowed to return to work because they had medical restrictions." Id., ¶12(a). As a member of this class, plaintiff was offered $1,000 in compensatory damages or re-employment with AVI. Id., ¶12(b),Appendix B. Plaintiff elected to take the $1,000 payment. AVI's Statement of Material Facts [51-2], ¶47.

ANALYSIS

A. Summary Judgment Standard

The standard to be applied on a motion for summary judgment in this Circuit is well settled. "Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits 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. The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Summary judgment is improper if there is any evidence in the record that could reasonably support the jury's verdict for the non-moving party." Ford v. Reynolds, 316 F. 3d 351, 354 (2d Cir. 2003).

B. Should AVI's Statement of Material Facts [51-2] be Deemed Admitted?

Loc. R. Civ. P. ("Local Rule") 56(a)(2) states that "[e]ach numbered paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement" (emphasis added). See Fed.R.Civ.P. ("Rule") 56(e) ("If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . .consider the fact undisputed for purposes of the motion"). Plaintiff's Counterstatement of Material Facts makes no attempt to address AVI's Statement of Material Facts by use of correspondingly numbered paragraphs [80].

Recognizing that "the local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule . . . statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record", I accept AVI's Statement of Material facts as true for purposes of this motion, where supported by admissible evidence. Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).

C. Should Plaintiff's Affidavit [58] be Disregarded?

AVI argues that plaintiff's affidavit should not be considered because "it brazenly ignores the requirement of [Rule] 56(e)". AVI's Reply Memorandum of Law [85], p.14. According to AVI, plaintiff's affidavit "(1) asserts allegations that contradict her own deposition testimony . . . ; (2) alleges facts for which plaintiff has no personal knowledge or are otherwise speculative, conclusory, or argumentative . . .; and (3) relays a series of immaterial and inadmissible statements and emotional appeals that are not relevant to the lawsuit". Id., p. 15.

Affidavits submitted in connection with summary judgment motions "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Rule 56(c)(4). "Accordingly, a court may strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Sandor v. SafeHorizon, Inc., 2011 WL 115295, *6 (E.D.N.Y. 2011) (emphasis in original). However, "Rule 56(e) [now Rule 56(c)(4)] defects normally are waived where the party opposing the summary judgment motion fails to make a motion to strike before the district court." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988). See Lakeview Outlets, Inc. v. Uram, 1997 WL 289221, *3 (N.D.N.Y.1997) ("Defendants are not moving to strike Grant's affidavit, however, and thus they are deemed to have waived this alleged Rule 56(e) defect").

Despite AVI's failure to file a formal motion to strike plaintiff's affidavit, I will "simply disregard any material that does not comply with Rule 56(e)", without "conduct[ing] a line-by-line analysis". Primmer v. CBS Studios, Inc., 667 F.Supp.2d 248, 254 (S.D.N.Y. 2009). "Moreover, to the extent [plaintiff's] affidavit uses conclusory or argumentative language, the Court will not make the suggested inferences simply because Plaintiff has suggested them." Id., at 254-255. Because "a party cannot create an issue of fact by submitting an affidavit in opposition to summary judgment that contradicts prior deposition testimony", I will also disregard these aspects of plaintiff's affidavit. Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010). See Needle v. Alling & Cory, Inc., 88 F.Supp.2d 100, 106 (W.D.N.Y. 2000) (Larimer, J.)("Notwithstanding his prior testimony and the other documentary evidence, however, plaintiff now maintains to the contrary that he 'could have performed his job despite amputations.'. . . This directly contradicts his prior deposition testimony, and is insufficient to create a question of fact on this issue").

D. Plaintiff's ADA Claims

1. Are Plaintiff's Claims Barred by Res Judicata?

AVI's estoppel arguments are predicated on the Consent Decree, which purports to "resolve[ ] all claims in dispute in this lawsuit". Harris Declaration [52-16], Ex. 4. Under the Consent Decree, plaintiff was identified as class member, and was notified by letter dated August 21, 2009 from AVI that "[i]f you do not wish to be considered for a position with AVI at...