OPINION & ORDER
Pro se Plaintiff Sheniece Clark (“Plaintiff’ or “Clark”) brings this Action against Defendant Jewish Childcare Association, Inc. (“JCCA” or “Defendant”), alleging that Defendant engaged in discriminatory practices under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. (the “ADA”). Before the Court is Defendant’s Motion For Summary Judgment. (Dkt. No. 35.) For the following reasons, Defendant’s Motion is granted.
I. Background
A. The Facts
1. Plaintiff’s Work at JCCA
JCCA is a not-for-profit organization providing a full range-of social and residential-services to children and their families in the New York metropolitan area. (Def.’s Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 (“Def.’s 56.1”) ¶ 1 (Dkt. No. 37); Decl. of Steven Mayo in Supp. of Def.’s Mot. For Summ. J. (“Mayo Deck”) ¶2 (Dkt. No. 39).)
Clark began working for JCCA in or around April 2003 as an on-call switchboard operator. (Def.’s 56.1 ¶ 4; Complaint For Employment Discrimination (“Compl.”) ¶ II.E.l (Dkt. No. 2); Clark Tr. 14, 63.) Clark became a full-time milieu counselor, or childcare employee, for JCAA in April 2006. (Def.’s 56.1 ¶ 5; Mayo Deck ¶ 4; Clark Tr. 63-64.) As a milieu counselor, Clark worked in the residential cottages at PCS and was responsible for the everyday needs and activities of the residents, including, among other things, the safety, supervision, and accountability of the residents, the upkeep of the cottage to which she was assigned, and escorting residents to appointments. (Def.’s 56.1 ¶ 6; Mayo Deck ¶ 4; Clark Tr. 79-82; Rice Deck Ex. E (JCCA Milieu Counselor Job Description).) Clark stated that she was able to do all of the job duties in the JCCA Milieu Counselor Job Description, except: (i) she attended briefings and treatment conference meetings only as assigned by the supervisor of PCS (rather than all such briefings or meetings); (ii) she and the other milieu counselors did not fix the residents’ hair; and (iii) she only took residents out with permission from the supervisor and the consent of the residents’ legal guardians. (Def.’s 56.1-¶ 7; Clark Tr. 82-83.) The residents for whom Clark was responsible as a milieu counselor were adolescent females, (Def.’s 56.1 ¶ 8; Clark Tr. 79-80), and Clark worked in several different PCS cottages over the course of her employment as a milieu counselor, (Defi’s 56.1 ¶ 9; Clark Tr. 71, 73-74, 76-78). Clark stated that she was a “target” in one of the cottages, Cottage 16, because the residents in that unit did not like her because of her “structured style of work,” and that JCCA set her up to be in that рosition in September 2010. (Def.’s 56.1 ¶ 10; Clark Tr. 85-86.)
2. Plaintiffs Disability Leave and Accommodation Requests
Clark went on leave on two occasions while she was employed at JCCA. (Def.’s 56.1 ¶ 11; Clark Tr. 95, 99-100.) From May 3, 2008 through August 2008, Clark took a workers’ compensation disability leave due to a torn ligament in her right shoulder. (Def.’s 56.1 ¶ 12; Compl. ¶ II.E.2; Clark Tr. 96-97.) Clark first became disabled when she inured her right shoulder on May 3, 2008, (Def.’s 56.1 ¶ 13; Clark Tr. 101), after a JCCA resident hit her with a chair, (Pk’s Objections & Responses to Def.’s Mot. For Summ. J. (“Pk’s Mem.”) at unnumbered 2 (Dkt. No. 46); Clark Tr. 96). Dr. Eial Faierman treated Clark’s shoulder every six weeks thereafter and Clark was experiencing increased right shoulder and neck pain for several months. (Def.’s 56.1 ¶¶ 14-15; Clark Tr.
Clark identified two alleged requests for accommodation that she made related to her disability in 2008, and stated that in 2010 she reported concerns about unsafe working conditions. (Def.’s 56.1 ¶ 19.) Clark testified that she sought, as an accommodation for her alleged disability, “[a] change in [her] schedule due to going to physical therapy, [and that] numerous time[s], [she] asked to have [her] schedule change[d] due to the safety of being in certain cottages that [her] supervisor had placed [her] in which [were] dangerous situations due to [her] ... work-related injury....” (Def.’s 56.1 ¶ 20; Clark Tr. 39-40.) Clark also stated that she sought a transfer back to the switchboard as an accommodation, starting in 2008 and again in 2010 and in 2011 before she went on leave after re-injuring her shoulder. (Def.’s 56. ¶ 21; Clark Tr. 42.) Clark believes that JCCA’s denial of the requested accommodations was discriminatory because of her history of challenging supervisors, and she testified that JCCA accommodated several other employees with alleged disabilities in various ways. (Def.’s 56.1 ¶¶ 24-25; Clark Tr. 112-114, 205.)
In or around early 2011, Clark requested a transfer out of Cottage 16, and that request was granted that same day with assistance from JCCA Senior Human Resources Associate Michelle Borges (“Borges”). (Def.’s 56.1 ¶ 23; Mayo Deck ¶ 7; Clark Tr. 76-77, 90-91.) Clark did not request any accommodation upon her return to work in August 2011. (Def.’s 56.1 ¶ 26; Clark Tr. 205.)
S. OCFS Indications and Termination of Plaintiffs Employment
According to the New York Sоcial Services Law, OCFS must timely assess a report of maltreatment of a child made by a mandated reporter. N.Y. Soc. Serv. Law § 424(5-b). OCFS must determine within sixty days whether the report is “indicated” or “unfounded.” Id. § 424(7). An “indicated report” means “a report made ... if an investigation determines
OCFS indicated Clark for abuse of a resident again in 2011, concerning an incident on March 14, 2011. (Def.’s 56.1 ¶ 32; Clark Tr. 150.) Clark states that on the day of the incident she “and two co-workers escorted two residents to another part of the JCCA faсility for disciplinary purposes.” (Pl.’s Mem. at unnumbered 2.) The resident “threw a punch” at one of her co-workers, “who in turn restrained the resident by initiating a ‘therapeutic hold’ ” and Clark “assisted [her co-worker] with the hold, was bitten by the resident, and had to receive medical treatment at West-chester Medical Center’s Emergency Room.” (Id. at unnumbered 2-3.) According to Clark, the other two co-workers involved in the incident were not indicated. (Id. at unnumbered 4.) Clark did not complete a critical incident report concerning the March 14, 2011 incident, despite the fact that it was her responsibility to document any such incident. (Def.’s 56.1 ¶ 33; Clark Tr. 156-157, 221-222.) According to Clark, a JCCA social, worker Ms. Evensen (“Evensen”) and the JCCA Director of Campus Life, Ms. Fazio (“Fazio”) reported the March 14, 2011 incident to OCFS after the resident-victim reported it to Evensen on June 1, 2011. (Def.’s 56.1 ¶ 34; Clark Tr. 159-161.) Clark acknowledged that upon learning of the incident, Evensen was mandated to report the incident to OCFS. (Def.’s 56.1 ¶ 35; Clark Tr. 161.)
In a letter dated August 3, 2011, OCFS advised JCCA that it indicated Plaintiff for abuse and maltreatment of a child concerning the March 2011 incident. (Pl.’s Mem. Ex. 21.) In a letter dated the same day, JCCA informed Clark that OCFS had indicated the report of maltreatment, explaining that this meant “some credible evidence was found to substantiate the allegations that the children) named in the report ha[d] been abused or maltreated.” (Id. at Ex. 20.)
On August 11, 2011, JCCA terminated Clark’s employment. (Def.’s 56.1 ¶ 36; Clark Tr. 208.) Clark had already returned from her leave when she was notified of her termination. (Def.’s 56.1 ¶ 37; Clark Tr. 252.) JCCA informed Clark that she was terminated because of the second OCFS indication against her. (Def.’s 56.1 ¶ 39; Compl. ¶ II.E.5; Clark Tr. 209-210, 216; Rice Decl. Ex. J. (Letter from Kay Turner to Sheniece Clark).) Other documents reflect that Clark was terminated from employment because of the OCFS findings against her. (Def.’s 56.1¶ 40; Clark Tr. 207-209; Rice Decl. Ex. H (Notice of Termination of Employment); Rice Decl. Ex. I (8/11/11 email from Michelle Borges to Pauline Sukhan).) JCCA claims that it never told Clark that there was any reason for her termination other than the OCFS findings. (Def.’s 56.1¶ 41; Clark Tr. 210, 216.) Clark
On November 19, 2009 and in 2011 after her termination, Clark requested that OCFS expunge the indications against her. (Def.’s 56.1 ¶ 42; Clark Tr. 253; PL’s Mem. Ex. 3; id. Ex. 10.) The OCFS Administrative Law Judge found that OCFS did not meet its burden to prove that Clark committed the alleged acts of neglect in 2009 or 2011 because counsel for OCFS, prior .to a hearing scheduled on January 6, 2012, informed the judge that. OCFS would not present any evidence at the hearing. (Def.’s 56.1 ¶¶ 43-33; Clark Tr. 261-263; Rice Deck Ex. K (OCFS Decision After Hearing).) There is nothing in the record explaining why OCFS did not present its evidence.
On November 22, 2011, Clark filed a complaint with the New York State Division of Human Rights (“NYSDHR”) against JCCA. (Def.’s 56.1 ¶ 46; Rice Deck Ex. C (Clark NYSDHR Complaint); Clark Tr. 33-35.) The NYSDHR dismissed Clark’s complaint, finding that “[t]he evidence gathered during the course of the investigation [was] not sufficient to support that [Clark] was discriminated against by [JCCA] based on her disability (shoulder injury) and/or retaliation,” and concluded that Clark “was terminated as a result of having two (2) child abuse investigations against her.” (Def.’s 56.1 ¶¶48-49; Rice Deck Ex. D (NYSDHR Determination and Order After Investigation).) Clark’s NYSDHR complaint was cross-filed with the U.S. Equal Employment Opportunity Commission, which adopted the NYSDHR’s findings and issued Clark a dismissal and notice of right to sue in September 2012. (Def.’s 56.1 ¶ 50; Clark Tr. 62.)
Clark testified that the first instance of retaliation against her by JCCA occurred in June 2011, when JCCA reported an incident involving Clark to OCFS. (Def.’s 56.1 ¶57; Clark Tr. 114.) Clark also alleges that JCCA retaliated against her because a family member had filed a complaint against JCCA. (Def.’s 56.1 ¶ 58; Clark Tr. 39.) Specifically, Clark’s sister, Cedeka Gooden, filed a complaint with the New York City Commission on Human Rights and the U.S. Equal Employment Opportunity Commission against JCCA in June 2010, asserting sex discrimination and retaliation claims under Title VII of the Civil Rights Act and the New York City Human Rights Law. (Def.’s 56.1 ¶ 59; Mayo Deck ¶ 6.) Additionally, Clark alleges that JCCA retaliated against her because she was “an outspoken employee and [was] always challenging [her] ... supervisors ...” and “they did not like her.” (Def.’s 56.1 ¶¶ 60-61; Clark Tr. 39, 145.) Clark also claims that her termination was retaliation for taking a second disability leave and for fighting to be removed from Cottage 16 due to safety reasons. (Def.’s 56.1 ¶ 62; Clark Tr. 217.)
B. Procedural History
Plaintiff filed.the Complaint on December 21, 2012. (Dkt. No. 2.) The Court granted Plaintiffs request to proceed in forma pauperis on January 23, 2013. (Dkt. No. 4.) Pursuant to a Scheduling Order dated July 7, 2014, (Dkt. No. 33), Defendant filed its Motion For Summary Judgment and accompanying papers on August
II. Discussion
A. Applicable Law
1. Standard of Review for Summary Judgment
Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc.,
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y.,
2. Wrongful Termination Under the ADA
The ADA “prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability.” Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc.,
To evaluate a claim for discrimination under the ADA, the familiar burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green,
“To establish a prima facie case of discrimination under the ADA, [a] plaintiff must show by a preponderance of the evidence that (1) his [or her] employer is subject to the ADA; (2) he [or she] was disabled within the meaning of the ADA; (3) he [or she] was otherwise qualified to perform the essential functions of his [or her] job, with or without reasonable accommodation; and (4) he [or she] suffered adverse employment action because of his [or her] disability.” Id.; see also Parker v. Columbia Pictures Indus.,
At the second step, “the defendant must produce evidence” which supports a “clear and specific” explanation for the termination, and which, “taken as true, would 'permit the conclusion that there was a nondiseriminatory reason for the adverse action.” Carlton v. Mystic Transp., Inc.,
Finally, at the third step, the plaintiff “must put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee’s [disability] was the real reason for the discharge.” Holt v. KMI-Cont’l, Inc.,
A defendant violates the ADA by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless such covered entity can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). Like a termination claim, discussed above, this claim is also subject to the McDonnell Douglas three-step burden-shifting framework. See McMillan v. City of New York,
(1) [the] plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his [or her] disability; (3) with reasonable accommodation, [the] plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.
McMillan,
U. Retaliation Under the ADA
The ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). The Second Circuit has identified four elements for a prima facie case of retaliation: “(i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against [the] plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.” Weixel v. Bd. of Educ. of City of N.Y.,
“Claims for retaliation are analyzed under the same burden-shifting framework established for Title VII cases.” Treglia v. Town of Manlius,
B. Analysis
1. Discrimination Claim
a. Prima Facie Case
Plaintiff alleges that JCCA discriminated against her by wrongfully terminating her employment because of her disability. (Compl. ¶ II.E.) For the purposes of the instant Motion, JCCA does not dispute that it is an employer subject to the ADA, that Plaintiff was disabled within the meaning of the statute, or that Plaintiff was otherwise qualified to perform the еssential functions of her job with or without reasonable accommodation. Rather, Defendant contests the fourth element of a prima facie case of discrimination, arguing that “there is no evidence of a causal connection between [Plaintiffs] alleged disability and her termination.” (Mem. of Law in Supp. of Def.’s Mot. For Summ. J. (“Def.’s Mem.”) 9 (Dkt. No. 36).)
The fourth element of a prima facie case “necessarily incorporates an inquiry as to whether the employer had notice of the plaintiffs disability.” McCoy v. Morningside at Home, No. 11-CV-2575,
Plaintiff states that after she was terminated, Borges told her that management was “upset” that Plaintiff took a second disability leave. (Pl.’s Mem. at unnumbered 5.) Defendant correctly points out that Plaintiff testified during her deposition that Borges made these comments on April 14, 2011 and August 5, 2011, the latter date of which was six days before Plaintiff was terminated. (Reply Mem. of Law in Supp. of Def.’s Mot. For Summ. J. (“Def.’s Reply”) 6-7 (Dkt. No. 42); Clark Tr. 187-89.) Because Plaintiff cannot “create a genuine issue of material fact by ... contradicting [her] own prior testimony in a deposition,” Mulero v. City of Bridgeport, No. 07-CV-1206,
In considering whether remarks are probative of discriminatory intent to satisfy the casual requirement of a prima facie case of discrimination, the Second Circuit has explained that “the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination,” whereas the “more a remark evinces a discriminatory state of mind, and the closer the remark’s relation to the allegedly discriminatory behavior, the more probative that remark will be.” Tomassi v. Insignia Fin. Grp., Inc.,
(1) who made the remark (i.e. a decision-maker, a supervisor, or a low-level coworker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e. whether it was related to the decision-making process).
Henry v. Wyeth Pharm., Inc.,
Next, Defendant argues that the remarks are stray because “[t]he first alleged remark occurred approximately four months before [Plaintiffs] termination, during which time [Plaintiff] was permitted to return to work .... [a]nd the second alleged remark, while closer in time to [Plaintiffs] termination, likewise preceded [her] return to work, which was an intervening event between the alleged remark and her termination.” (Def.’s Reply 6-7.) “There is no bright line rule regarding the length of time that renders an allegedly discriminatory remark too attenuated to
As to the third factor, the remarks are not obviously discriminatory. The remarks directly reference Plaintiffs leave, which Defendant does not contest was the result of her disability. See Baron,
Turning to the fourth factor, the Court agrees with Defendant that there is no evidence that the remarks were made in the context of the decision making process. From Plaintiffs deposition testimony, it is clear that the remark made in April 2011 was in reference to Plaintiffs request for a second disability leave and the documentation that JCCA required to approve the leave, not her termination. (Clark Tr. 187-89.) The Court does not find any
In the end, two of the four factors slightly favor Plaintiff, and two slightly favor Defendant. Because “nоne of the factors should be regarded as dispositive,” the Court finds that “[ojverall the remarks allow for an inference of discrimination,” Pagan v. Morrisania Neighborhood Family Health Ctr., No. 12-CV-9047,
b. Non-Discriminatory Reason
Turning to the second step of the burden-shifting analysis, the Court concludes that Defendant has proffered strong evidence of a non-discriminatory reason for Plaintiffs termination. Defendant claims that it “terminated [Plaintiff] because OCFS returned a second indication against her in 2011, after she had been warned in 2009 that another indication would be grounds for termination.” (Def.’s Mem. 10.) Indeed, the evidence supports Defendant’s claim. Plaintiff was indicated in' 2009, following a report of abuse and neglect concerning an incident in late April 2009 involving a resident in her care, and OCFS ultimately concluded that Plaintiff had abused the resident. (Def.’s 56.1 ¶¶ 27-29; Clark Tr. 120-121, 128.) Following OCFS’s indication, in a letter dated September 29, 2009, JCCA placed Plaintiff on six months’ probation and stated that “[t]his letter should be considered a final warning and in the event that another incident of a similar nature occurs, your employment will be terminated.” (Rice Deck Ex. F.)
OCFS then indicated Plaintiff a second' time on August 3, 2011 for abuse of a resident concerning an incident on March 14, 2011, (Def.’s 56.1 ¶ 32; Clark Tr. 150; Pl.’s Mem. Exs. 20-21), which means, as noted, that OCFS “determin[ed] that some credible evidence of the alleged abuse or maltreatment exist[ed],” N.Y. Soc. Serv. Law § 412(7). By letter dated August 12, 2011, a representative of JCCA notified Plaintiff that her “position as milieu counselor ... was terminated effective August 11, 2011 due to the OCFS findings.” (Rice Decl. Ex. J.) Other documents reflect that Clark was terminated from employment because of the OCFS findings against her. (Def.’s 56.1 ¶ 40; Clark Tr. 207-209; Rice Deck Ex. H (Notice of Termination of Employment); Rice Deck Ex. I (8/11/11 email from Michelle Borges to Pauline Sukhan).) In light of this evidence supporting that Plaintiffs termination was due to the OCFS’s second indication, Defendant has satisfied its burden at step two of the McDonnell Douglas framework.
c. Pretext
Because Defendant proffers a legitimate reason for Plaintiffs termination, the burden shifts to Plaintiff to demon
Plaintiff claims that “JCCA caused [the] second report to be filed against [her].” (Pl.’s Mem. at unnumbered 4.) To support this contention, Plaintiff suggests that there was something improper about Defendant’s reporting of the alleged incident of abuse 79 days after it allegedly occurred. Plaintiff claims that “[a]ll three JCCA employees present for the events of March 14[, 2011] were ‘mandated reporters’ ... [who] can be criminally and civilly liable for intentionally failing to report when they reasonably suspect that a child is being abused or mistreated.” (Id.)
The fact that the second indication against Plaintiff was ultimately dismissed because OCFS informed the administrative law judge that it would not present any evidence at the hearing concerning the matter does not, without more, support Plaintiffs allegation that JCCA caused the indication. The administrative law judge dismissed the indication after Plaintiff was terminated and, therefore, Defendant had no reason to question the validity of the indication at the time that it terminated Plaintiff. (Def.’s 56.1 ¶ 42; Clark Tr. 253.) Indeed, the September 29, 2009 letter stated that Plaintiffs employment would be terminated “in the event that another incident of a similar nature occurs.” (Rice Decl. Ex. F.) The resident-victim’s allegations of abuse and OCFS’s initial indication satisfy this criterion, despite the fact that the indication was ultimately dismissed.
Plaintiff also suggests that Defendant’s decision to terminate her employment demonstrates that .she was treated differently from at least one other JCCA employee, Georgio Harper (“Harper”). (PL’s Mem. at unnumbered 5.) Specifically, Plaintiff states that JCCA allowed Harper
Here, there are differentiating and mitigating circumstances that distinguish Harper’s discipline, or lack thereof, from Plaintiffs discipline. First, as Defendant points out, “JCCA had good reason to treat [Plaintiff] and Harper differently,” because “OCFS amended and withdrew its indication against Harper ... [after] ma[king] the substantive determination that Harper was no longer an indicated subject,” whereas “[Plaintiffs] indications were amended on a technicality having nothing to do with the merits.” (Def.’s Reply 8.) Second, there is nothing in the record to suggest that Harper was warned after his first indication that similar allegations would result in the termination of his employment. Because Plaintiff cannot point to an employee whose indication was dismissed in a similar posturе as Plaintiffs indication, or after an employee had been warned that a similar incident would result in his or her dismissal, there is no evidence that Plaintiff was treated differently than other JCCA employees. See Rivera v. Orange County, No. 10-CV-9134,
Even assuming, however, that Harper was similarly situated to Plaintiff, Plaintiff has failed to produce sufficient evidence that she was terminated because of her disability. “Whether summary judgment is appropriate ... depends upon the strength of the plaintiffs] prima facie case, the probative value of the proof that the [defendant’s] explanation is false, and any other evidence that supports the [defendant’s] case.” Lizardo v. Denny’s, Inc.,
2. Reasonable Accommodation Claim
As explained above, to establish а prima facie case of a failure-to-aecommodate claim'under the ADA a plaintiff must demonstrate that:
(1) [the] plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his [or her] disability; (3) with reasonable accommodation, [the] plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.
McMillan,
In her Complaint, Plaintiff alleges that Defendant refused to accommodate her disability, but does not explain what accommodations she sought from Defendant or how Defendant otherwise failed to accommodate her. (Compl. II.A.) Plaintiff
First, to the extent that Plaintiff claims she was denied a reasonable accommodation in 2008, specifically a change in her schedule to attend physical therapy or removal from the cottages to which she was assigned, these claims are time-barred. “As a predicate to filing suit under the ADA, a plaintiff must first file a timely charge with the U.S. Equal Employment Opportunity Commission (the ‘EEOC’) or a state or local agency capable of granting relief.” Flum v. Dep’t of Educ. of the City of N.Y.,
“Claims not raised in an EEOC complaint [or with the appropriate state agency] ... may be brought in federal court if they are ‘reasonably related’ to the claim filed with the agency.” Williams v. N.Y.C. Hous. Auth.,
Here, Plaintiff filed her complaint with the NYDHR on November 22, 2011. (Rice Decl. Ex. C.) Accordingly, any claim that JCCA failed to accommodate Plaintiff in 2008 is time-barred unless it is “reasonably related” to the claims Plaintiff filed. The second situation for whether a claim is reasonably related is clearly inapplicable, as Plaintiff does not allege retaliation for filing a NYDHR or EEOC charge. The first and third situations are also inapplicable. In her complaint with the NYDHR, Plaintiff stated that she was discriminated against when she was “out on disability due to [a] work related injury!,]” and checked, among other boxes, the box that Defendant denied her an accommodation because of her disability. (Id. at 5-6.) Under the section titled “description of discrimination [] for all complaints,” Plaintiff described her disability leave due to her March 31, 2011 injury. (Id. at 7.) Plaintiff did not reference her disability or disability leave in 2008. Indeed, Plaintiff did not reference any discriminatory conduct prior to 2011. There is nothing to support, then, that “the conduct [Plaintiff] complained of would fall within the scope of the EEOC investigation.” Flum,
Turning to Plaintiffs requests to be transferred to the switchboard, “[t]he ADA defines ‘reasonable accommodation’ as including but not limited to ‘job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position.’ ” Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,
Here, Plaintiff points to no evidence that the purported fivе-week delay in granting her disability leave was motivated by discriminatory intent. Instead, Plaintiff states that after her injury on March 30, 2011, from March 31, 2011 through April 19, 2011, she “called out each of [her] scheduled workdays, citing [her] injury as the reason,” (Pl.’s Mem., at unnumbered 3), and “returned to work on August 9, 2011,” (id.) Indeed, in a letter appended to Plaintiffs opposition papers dated April 14, 2011, JCCA stated that Clark “last reported to work on March 31, 2011,” had “since called out on several days stating that [she] had no transportation to get to work,” and informed Borges on April 6, 2011 “that [she][was] sick and tired of JCCA.” (Pl.’s Mem. Ex. 9.) The letter explained that on April 12, 2011, Borges “inquired as to [Clark’s] status and asked why [she] [had] not reported to work and that [her] position with JCCA was in jeopardy.” (Id.) Clark responded that she was ill. Borges requested a note from Clark’s doctor, but, according to the letter, Clark had not submitted any documentation of her illness. (Id.) The letter advised that it constituted Clark’s “final warning to turn in a physician’s note by 5pm, Monday April 18, 2011 substantiating [her] absence ... or [her] employment [would] be terminated.” (Id.) Clark submitted a doctor’s note dated April 19, 2011, in which Plaintiffs doctor stated under the subsection titled “[h]istory of present illness” that “[t]he patient presented] for a routine follow up ... denie[d] recent injury or trauma, ... [and was] not working and has not worked since 3/31/11 due to pain.” (PL’s Mem. Ex. 10 at unnumbered 2.) Plaintiffs doctor concluded that she hаd “right shoulder sprain status post right shoulder arthroscopy.” (Id.) In a letter dated April 27, 2011, JCCA informed Plaintiff that it needed further documentation or information about Plaintiffs disability to determine whether Plaintiff was entitled to paid sick benefits, requested that Plaintiff provide the information within 14 days of the receipt of the letter, and advised that until it received the information it could not determine Plaintiffs eligibility for paid sick leave. (Id. at unnumbered 1.) The evidence, then, supports that the delay in granting Plaintiffs medical leave was due to her failure to submit documentation of her disability despite JCCA’s requests, and therefore Plaintiffs claim that Defendant’s delay in approving her disability leave constructively denied her request is without merit. Cf. Dollar v. Brooklyn Hosp. Ctr., No. 10-CV-4807,
3. Retaliation Claim
a. Prima Facie Case
As noted above, the Second Circuit has identified four elеments for a prima facie case of retaliation: “(i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against [the] plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.” Weixel,
Plaintiff cannot establish a pri-ma facie case based on her claim for retaliation for the first two reasons because neither reason is a “protected activity” under the ADA. A plaintiff engages in a “protected activity” under the ADA if she “has opposed any act or practice made unlawful by this chapter•” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”. 42 U.S.C. § 12203(a) (emphases added);1 see Alford v. Turbine Airfoil Coating & Repair, LLC, No. 12-CV-7539,
“[T]he causal connection needed for proof of a retaliation claim can be established by indirectly showing that the protected activity was closely followed in time by the adverse action.” Cifra v. Gen. Elec. Co.,
b. Non-Retaliatory Reason
Defendant claims that Plaintiff was terminated because of the second OCFS indication. As discussed in detail above, Defendant offers factual support for this contention and meets its burden of establishing a non-retaliatory reason for terminating Plaintiffs employment to satisfy its burden at the second stage of the McDonnell Douglas analysis.
c. Pretext
“Once the first two steps of the burden-shifting test have been satisfied, ‘the McDonnell Douglas framework disappears,’ and ‘the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason for the allegedly retaliatory conduct is a pretext.’ ” Villanti v. Cold Spring Harbor Cent. Sch. Dist.,
Here, the temporal proximity between Plaintiffs return from disability leave and her termination, while sufficient to satisfy her prima facie burden of establishing retaliation, does not, without more, satisfy her ultimate burden of persuasion. Plaintiff offers explanations of why JCCA’s legitimate reason is pretext. Specifically, Plaintiff claims that JCCA “caused” the second indictment to be brought against her and even if the indication was legitimate, JCCA treated her differently than Harper. As discussed above, however, all of the evidence contradicts this assertion. Evensen and Fazio reported abuse allegations against Plaintiff because a resident in Plaintiff’s care informed them of the incident and they were mandated to do so under law, a fact that Plaintiff admits. Moreover, Plaintiff has not shown that she was similarly situated as Harper, for the reasons discussed above. See Pedi v. Gov’t Emps. Ins. Co., No. 11-CV-5977,
III. Conclusion
For the reasons stated above, Defendant’s Motion For Summary Judgment is granted. The Clerk of the Court is respectfully requested to terminate the pending motion, enter judgment for Defendant, and close the case. (See Dkt. No. 35.)
SO ORDERED.
Notes
. Local Civil Rule 56.1(a) requires the moving party to submit a "short and concise statement, in numbered paragraphs, of the material facts as to which the moving party ■ contends there is no genuine issue to be tried." The nonmoving party, in turn, must submit "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short, and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Local Civ. R. 56.1(b). “A pro se litigant is not excused from this rule,” Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813,
Nevertheless, in her Memorandum of Law, Plaintiff makes several statements about the facts of this case and appends several documents for the Court's consideration. (Dkt. No. 46.) Defendant objects to the use of these documents, in part, on the ground that some of them were not produced in discovery, though Defendant does not identify the unpro-duced materials. Recognizing that pro se litigants are entitled to "special solicitude ... when confronted with motions for summary judgment,” Graham v. Lewinski,
. The documents Plaintiff attaches to her opposition, which the Court cites according to the numbered list that Plaintiff provides, are not consistent with these assertions. Instead, correspondence between JCCA and Plaintiff shows that JCCA was asking for verification from Plaintiff that she was disabled, particularly in light of Plaintiff's apparent statement that she was "sick and tired of JCCA.” (PL’s Mem. Ex. 9.) Moreover, the note from Clark's doctor indicated that Clark "denie[d] recent injury or trauma,” and “presented] for a routine follow up,” (PL’s Mem. Ex. 10 at unnumbered 2), suggesting she did not injure her shoulder during the March 2011 incident. In any event, there is no dispute that Plaintiff was on medical leave from March 31, 2011, until she voluntarily returned to work on August 9, 2011.
. Defendant acknowledges that it received Plaintiff's oppositiоn papers, which were postmarked on September 16, 2014. (Reply Mem. of Law in Supp. of Def.'s Mot. For Summ. J. (“Def.’s Reply”) 10 (Dkt. No. 42).)
. The Court notes that Plaintiffs burden of persuasion is not clear. In Gross v. FBL Fin. Servs., Inc.,
In the Second Circuit, prior to Gross, courts applied the "mixed-motive analysis available in the Title VII context” to ADA claims, see Parker,
The Court need not resolve this question, because, as explained below, Plaintiff has failed to present evidence sufficient to meet either burden.
. The Court notes again that Plaintiffs burden of persuasion is not entirely clear in light of the Supreme Court's decision in Gross. For the reasons explained herein, however, the Court need not resolve this issue.
. Plaintiff was one of these three employees.