Jeffries v. Verizon
ORDER ADOPTING REPORT AND RECOMMENDATIONS: ORDERED that the R&R is adopted in its entirety, and defts motion for summary judgment is granted as to all claims with the exception of plaintiffs Feb. 2009 failure to accommodate claim, for the reasons art iculated by M.J Tomlinson in the thorough and well-reasonsed R&R. The parties shall submit a joint pre-trial roder pursuant to the Courts Individual Rules by 11/21/12. Ordered by Judge Joseph F. Bianco on 9/21/2012. (Bollbach, Jean) Modified on 9/21/2012 to include that cm by chambers to pro se by fcm on 9/21/12 (Bollbach, Jean).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORDER ADOPTING REPORT
.'~t; 10~CV~2686(JFB)(AK!? : ,,.;.;'i ~~<'~,
IN CLERK'S OFFICE
SEP 2 1 2012
JOSEPH F. BIANCO, District Judge:
On June 14, 2010, plaintiff filed the complaint in
LONG ISLAND OFFICe
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filed an answer. On September 6, 2011, defendant requested a pre-motion conference in anticipation
of moving for summary judgment. On September 12, 2012, the Court issued an Order directing the
parties to participate in a pre-motion conference on September 23, 2011. On that date, the Court set
a briefing schedule for defendant's motion. Defendant filed its motion for sununary judgment on
November 4, 2011. On December 19, 2011, plaintiff filed his opposition to defendant's motion. On
January 20, 2012, defendant filed a reply. On April 11, 2012, the Court referred the motion to
Magistrate Judge A. Kathleen Tomlinson for a Report and Recommendation.
On August 31, 2012, Magistrate Judge Tomlinson issued a Report and Recommendation (the
"R&R") recommending "that Defendant's motion for sununary judgment be GRANTED, in part,
and DENIED, in part." (R&R, at 1.) Specifically, the R&R recommended that defendant's motion
for sununary judgment be granted as to all claims with the exception of plaintiffs Fe_bruary 2009
failure to accommodate claim. (Id at 38.) The R&R states that "the parties shall have fourteen (14)
days from service of this Report and Recommendation to file written objections." and that "[f]ailure
to file objections will result in a waiver of those objections for purposes of appeal." (Id.) On
September 14, 2012, defendant submitted its objections to the R&R. To date, plaintiff has not
submitted any objections to the R&R. For the reasons that follow, the Court adopts Magistrate Judge
Tomlinson's thorough and well-reasoned R&R in its entirety.
I. Standard of Review
When a party submits a timely objection to a report and recommendation, the district judge
will review the parts of the report and recommendation to which the party objected under a de novo
standard of review. See 28 U.S.C. § 636(b)(l)(C) ("A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to
which objection is made."); Fed. R. Civ. P. 72(b )(3) ("The district judge must determine de novo any
part of the magistrate judge's disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the matter
to the magistrate judge with instructions."). Where clear notice has been given of the consequences
of failure to object, and there are no objections, the Court may adopt the report and recommendation
without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that
Congress intended to require district court review of a magistrate's factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings."); see also Mario
v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of
the consequences, failure timely to object to a magistrate's report and recommendation operates as
a waiver of further judicial review of the magistrate's decision."). However, because the failure to
file timely objections is not jurisdictional, the district judge can still excuse the failure to object in
a timely manner and exercise its discretion to decide the case on the merits to, for example, prevent
plain error. See Cephas v. Nash, 328 F .3d 98, I 07 (2d Cir. 2003) ("[B]ecause the waiver rule is non
jurisdictional, we 'may excuse the default in the interests of justice."' (quoting Thomas v. Arn, 474
U.S. at 155)).
II. Defendant's Objections
Defendant objects to the R&R with respect to its recommendation that the Court deny
defendant's motion for summary judgment with respect to the February 2009 accommodation
request. Defendant's objection is twofold: (I) plaintiff failed to raise a genuine issue of material fact
on his 2009 failure to accommodate claim because he presented no competent evidence that he was
qualified or that there was a reasonable accommodation for the positions that he identified, and (2)
plaintiff unreasonably cut off the interactive process by which Verizon sought to accommodate him
in his managerial position in Westchester, New York. (Def.'s Objections at 4, II, Sept. 14,2012,
ECF No. 68.) Having reviewed de no all portions of the R&R to which defendant specifically
objects, and having reviewed the remainder of the R&R for clear error, the Court adopts the R&R
in its entirety .1
A. Reasonable Accommodation for the Positions Identified
With respect to defendant's first argument, defendant argues that (a) plaintiff acknowledged
that the managerial positions available in New Jersey in February 2009 "require accommodations"
yet plaintiff never identified the required accommodation, (b) plaintiff has not shown he could
perform the essential duties of the managerial positions in Florida and Virginia and in any event,
plaintiff never stated he would accept these positions, and (c) plaintiff was unqualified for a field
1 Even if the Court reviewed the entire R&R under ade novo standard, the Court would reach the same
conclusion for the reasons set forth in the thorough R&R.
technician job because of his vertigo and an associate position would have interfered with the
collectively bargained rights of other employees.
Construing all of the evidence in the light most favorable to plaintiff, there is sufficient
evidence in the record to find that plaintiff has met his burden to establish that a vacancy existed into
which he may have been transferred, and that plaintiff was qualified for these positions. The Court
notes that under the A.D.A., "reasonable accommodation may include, inter alia, modification of
job duties and schedules, alteration of the facilities in which a job is performed, acquisition of
devices to assist the performance of job duties, and under certain circumstances, 'reassignment to
a vacant position."' McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir.
2009) (quoting 42 U.S.C. § 12111(9)(8)) (emphasis added).Z In response to plaintiffs proof,
defendant has failed to point to any evidence in the record that any of these proposed positions could
not be performed by someone with a hearing impairment. Thus, Magistrate Judge Tomlinson
correctly determined that plaintiff had raised a genuine issue of material fact with respect to these
positions that precluded summary judgment in defendant's favor.
B. Plaintiff's Role in the Interactive Process
In its objections, defendant reiterates its original argument in moving for summary judgment
that plaintiff cut off the interactive process by not responding to Spath in March 2009, and such
conduct is fatal to his A.D.A. claim. The Court agrees with Magistrate Judge Tomlinson, that
With respect to the first subpart of defendant's argument, plaintiff has identified reassignment to the
positions in New Jersey as an accommodation. Although the Court is aware that plaintiff wrote in his opposition that
the position would require accommodations, given that a transfer itself is an accommodation, plaintiff''!"ro se status,
and the evidence in the record with respect to plaintiff's experience and what type of work setting plaintiff was
seeking, the Court fmds that plaintiff has met his burden of creating a material issue of fact as to whether he could
perform the essential duties of these positions.
plaintiff failed to respond to Spath's email only after Verizon denied his transfer accommodation
request, and that plaintiff did in fact follow up in July 2009 with an additional request for transfer.
As such, there are, at the very least, disputed issues of fact with respect to the circumstances
surrounding the cessation of the interactive process, and summary judgment must be denied.
IT IS ORDERED that the R&R is adopted in its entirety, and defendant's motion for
summary judgment is granted as to all claims with the exception of plaintiffs February 2009 failure
to accommodate claim, for the reasons articulated by Magistrate Judge Tomlinson in the thorough
and well-reasoned R&R. The parties shall submit a joint pre-trial order pursuant to the Court's
Individual Rules by November 21,2012.
f\ I \ I
!TED STATES DISTRICT JUDGE
Central Islip, NY
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