Wagner v. County of Nassau et al
Filing
41
MEMORANDUM & ORDER granting in part and denying in part 34 Motion for Summary Judgment. Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. It is GRANTED as to Plaintiff's request for punitive damages pursuant to 42 U.S.C. § 1981a. Defendants' motion is otherwise DENIED. So Ordered by Judge Joanna Seybert on 7/11/2014. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------x
BARBARA WAGNER,
Plaintiff,
-against-
MEMORANDUM & ORDER
11-CV-1613(JS)(ARL)
COUNTY OF NASSAU and COUNTY OF
NASSAU DEPARTMENT OF PUBLIC
WORKS,
Defendants.
----------------------------------------x
APPEARANCES
For Plaintiff:
Josh H. Kardisch, Esq.
Kardisch Law Group, PC
585 Stewart Avenue, Suite 740
Garden City, NY 11530
For Defendants:
Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
SEYBERT, District Judge:
Currently
pending
before
the
Court
is
defendants
County of Nassau (the “County”) and County of Nassau Department
of
Public
Works’
(“DPW”
and
together
“Defendants”) motion for summary judgment.
with
the
County,
For the following
reasons, Defendants’ motion is GRANTED IN PART and DENIED IN
PART.
BACKGROUND1
Plaintiff
Barbara
Wagner
(“Plaintiff”)
Defendants from 1988 to 1991 and from 1992 to 2007.
56.1 Stmt., Docket Entry 23-1, ¶ 1.)
to a Laborer II position.
worked
for
(Defs.’ Am.
In 2001, she was promoted
(Defs.’ Am. 56.1 Stmt. ¶ 11.)
In
2005, she was reassigned to the Fleet Management Bureau at the
DPW,
where
she
received
disciplinary
latenesses and insubordination.
actions
regarding
(Defs.’ Am. 56.1 Stmt. ¶¶ 12,
14.)
On
March
16,
2007,
Plaintiff
moved
from
the
Management Bureau to the Facilities Management Bureau.
Am. 56.1 Stmt. ¶ 15.)
(Defs.’
There, she reported directly to Peter
Andriano, the Deputy Superintendent of Buildings.
56.1 Stmt. ¶ 15.)
Fleet
(Defs.’ Am.
Mr. Andriano assigned Plaintiff the task of
obtaining records of fuel oil tanks from the Water Management
Office.
(Defs.’ Am. 56.1 Stmt. ¶ 15.)
According to Defendants,
however, Mr. Andriano was not satisfied with Plaintiff’s work.
(Defs.’
Am.
56.1
Stmt.
¶¶
15-16.)
As
such,
Plaintiff
was
transferred to Warehouse A, where she could receive increased
supervision.
(Defs.’ Am. 56.1 Stmt. ¶ 17.)
The following material facts are drawn from the parties’ Local
Civil Rule 56.1 Statements (“56.1 Stmt.”) and Counterstatements
(“56.1 Counterstmt.”) and the evidence in support. Where
relevant, the Court has noted specific factual disputes.
1
2
Plaintiff’s
duties
while
at
Warehouse
A
included
straightening aisles and performing inventory on boxes of nuts,
bolts, and screws.
Defendants,
(Defs.’ Am. 56.1 Stmt. ¶ 20.)
Plaintiff’s
unsatisfactory
continued.
used
work
(Defs.’ Am. 56.1 Stmt. ¶ 21.)
absent
and
personal use.
the
County
phone
and
According to
performance
She was late and
computer
(Defs.’ Am. 56.1 Stmt. ¶ 21.)
for
her
own
In fact, while
assigned to Warehouse A, Plaintiff requested an accommodation to
change her hours from 7:00 a.m. to 3:30 p.m. to 8:00 a.m. to
4:30 p.m. in order to reduce her tardiness.
Stmt. ¶ 24.)
(Defs.’ Am. 56.1
Defendants made this change, though they maintain
that it did not reduce Plaintiff’s tardiness.
(Defs.’ Am. 56.1
Stmt. ¶ 24.)
Early
in
her
assignment
at
Warehouse
A,
Plaintiff
complained to Kurt Roocke, Plaintiff’s direct supervisor, and
Mr. Andriano that she was not feeling well and believed it to be
caused by the ambient environment within the warehouse.
Am. 56.1 Stmt. ¶ 26.)
(Defs.’
During this time, Plaintiff also had a
second job working as a Data Entry Clerk at the Uniondale Fire
District.
(Defs.’ Am. 56.1 Stmt. ¶ 23.)
Although
no
other
employees
complained,
Defendants
arranged for the Office of the Fire Marshal-County of Nassau
Hazardous
Materials
Division
to
warehouse on November 19, 2007.
3
test
the
environment
in
the
(Defs.’ Am. 56.1 Stmt. ¶ 27.)
On
December
20,
2007,
DPW
also
requested
that
the
Department of Health test the indoor air quality.
56.1
Stmt.
normal,
¶
27.)
though
monoxide.
The
there
(Defs.’
results
may
Am.
have
56.1
from
been
Stmt.
the
Fire
trace
¶¶
Counterstmt., Docket Entry 23-3, ¶ 27.)
(Defs.’ Am.
Marshal
amounts
27-28;
County
Pl.’s
of
were
carbon
Am.
56.1
Plaintiff asserts that
the January 17, 2008 inspection by the County Department of
Health revealed high levels of carbon dioxide, low temperatures,
and
poor
ventilation.
(Pl.’s
Am.
56.1
Counterstmt.
¶
27.)
Plaintiff also brought in her own device to test for carbon
monoxide, and the results were normal.
(Defs.’ Am. 56.1 Stmt.
¶ 28.)
Plaintiff subsequently gave Roocke a note from Steven
Seyburn, M.D. dated November 21, 2007 stating that Plaintiff’s
work environment was making her sick.
¶¶ 30-31.)
(Defs.’ Am. 56.1 Stmt.
Fredrick Maroni, another of Plaintiff’s supervisors,
then sent Plaintiff home sick until she could produce a doctor’s
note authorizing her to return to work “with no restrictions.”
(Defs.’ Am. 56.1 Stmt. ¶ 31.)
return
to
work
policy
According to Defendants, DPW’s
requires
that
an
employee
submit
a
doctor’s note stating that he or she can return to work with no
restrictions.
(Defs.’ Am. 56.1 Stmt. ¶ 36.)
This is because
there are no “light duty” positions with DPW and an employee
4
must remain out sick until she can return to work in a full
capacity.
(Defs.’ Am. 56.1 Stmt. ¶ 37.)
Plaintiff did not return to work after November 30,
2007.
(Defs.’ Am. 56.1 Stmt. ¶ 32.)
However, she did submit
two other doctor’s notes from Jeffrey M. Caruso, D.O., dated
December 3, 2007 and December 5, 2007, respectively.
Am.
56.1
Stmt.
¶
33.)
The
December
3rd
note
(Defs.’
stated
that
Plaintiff could return to work but that she would have to be
“closely monitored.”
(Defs.’ Am. 56.1 Stmt. ¶ 33.)
Defendants
rejected this letter due to the caveat of close monitoring and
because the letter did not make clear whose responsibility it
was to monitor Plaintiff.
(Defs.’ Am. 56.1 Stmt. ¶ 33.)
The
December 5th note stated that the work environment was making
Plaintiff ill but that she could return to work without any
restrictions.
(Pl.’s
56.1
Counterstmt.
Counterstmt., Docket Entry 23-4, ¶ 79.)
¶
77;
Def.’s
Plaintiff maintains
that she was unaware that the letters had been rejected.
Am.
56.1
further
Counterstmt.
notes
available
and
34.)
Defendants
positions
transferred.
¶
within
Plaintiff
maintained
DPW
to
which
56.1
did
not
that
(Pl.’s
submit
there
Plaintiff
any
were
no
could
be
(Defs.’ Am. 56.1 Stmt. ¶¶ 34-35; Pl.’s Am. 56.1
Counterstmt. ¶ 35.)
Thereafter,
Plaintiff
submitted
Grievance with her union, the CSEA.
5
a
Step
1
Contract
(Defs.’ Am. 56.1 Stmt.
¶ 38.)
Plaintiff also made a complaint to the Public Employee
Safety and Health Bureau (“PESH”) and participated in a Workers’
Compensation hearing.
(Defs.’ Am. 56.1 Stmt. ¶¶ 40, 43.)
At
the Workers’ Compensation hearing, medical evidence showed that
Plaintiff had a history of allergic rhinitis, receiving allergy
shots, and Gastroesophageal Reflux Disease (“GERD”).
Am. 56.1 Stmt. ¶ 42.)
(Defs.’
Ultimately, the New York State Workers’
Compensation Board disallowed Plaintiff’s claim.
(Defs.’ Am.
56.1 Stmt. ¶ 43.)
By
letter
dated
December
19,
2008,
Dena
Miller
DeFranco, the DPW Deputy Commissioner, informed Plaintiff of her
termination under Section 71 of the New York State Civil Service
Law.
(Defs.’ Am. 56.1 Stmt. ¶ 41.)
However, after the New York
State Workers’ Compensation Board’s decision, DPW withdrew its
December 19, 2008 termination letter and put Plaintiff on notice
that her employment may be terminated pursuant to Section 73 of
the
New
York
State
Civil
Service
Law
absence from work for a year or more.
¶ 47.)
due
to
her
continued
(Defs.’ Am. 56.1 Stmt.
Plaintiff was also given the opportunity to discuss her
termination at a February 5, 2009 meeting.
Stmt. ¶ 47.)
(Defs.’ Am. 56.1
Plaintiff attended the February 5, 2009 meeting,
but by letter dated February 18, 2009, DPW informed Plaintiff of
her termination.
(Defs.’ Am. 56.1 Stmt. ¶¶ 48-49.)
6
Plaintiff had the opportunity to return to work upon
examination by a medical officer selected by the Commissioner,
but she never made such an application.
¶¶ 49-51.)
(Defs.’ Am. 56.1 Stmt.
Plaintiff asserts that she tried to request that an
appointment be set up, but that the letters she received did not
inform
her
of
how
to
go
about
doing
so.
(Pl.’s
Am.
56.1
Counterstmt. ¶ 46.)
Currently,
Defendants
pursuant
Plaintiff
to
the
has
Americans
raised
with
claims
against
Disabilities
Act
(“ADA”) and the New York State Human Rights Law (“NYSHRL”).
DISCUSSION
Defendants now seek summary judgment.
The Court will
first address the applicable legal standard before turning to
Defendants’ arguments more specifically.
I.
Legal Standard
Summary judgment is only appropriate where the moving
party can demonstrate that there is “no genuine dispute as to
any material fact” and that the moving party is entitled to
judgment
as
a
matter
of
law.
FED. R. CIV. P.
56(a).
In
considering this question, the Court considers “the pleadings,
depositions, answers to interrogatories and admissions on file,
together with any other firsthand information including but not
limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d
Cir. 2011) (citation omitted); see also FED. R. CIV. P. 56(c).
7
“In assessing the record to determine whether there is a genuine
issue to be tried . . . the court is required to resolve all
ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought.”
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
McLee v.
The burden of
proving that there is no genuine issue of material fact rests
with the moving party.
Gallo v. Prudential Residential Servs.,
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. &
Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)).
Once that
burden is met, the non-moving party must “come forward with
specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.
1998),
to
demonstrate
that
“the
evidence
is
such
that
a
reasonable jury could return a verdict for the nonmoving party,”
Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505,
2510,
91
L.
Ed.
2d
202,
218
(1986).
allegations or denials will not suffice.”
781 F.2d 319, 323 (2d Cir. 1986).
“Mere
conclusory
Williams v. Smith,
And “unsupported allegations
do not create a material issue of fact.”
Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000), superseded by statute on
other grounds as stated in Ochei v. Coler/Goldwater Mem’l Hosp.,
450 F. Supp. 2d 275, 282 (S.D.N.Y. 2006).
II.
Defendants’ Motion
Defendants seek summary judgment, arguing that: (1)
Plaintiff’s failure to accommodate claim under the ADA fails,
8
(2) Plaintiff’s discrimination claim under the ADA fails, (3)
Plaintiff’s
hostile
work
environment
claim
fails,
(4)
Plaintiff’s retaliation claim fails, and (5) Plaintiff’s request
for
damages
because
pursuant
Defendants
to
made
42
a
U.S.C.
good
§
1981a
faith
should
effort
to
be
denied
accommodate
Plaintiff.
Before the Court addresses the substantive merits of
Defendants’
Plaintiff
motion,
asserts
a
few
that
accommodate claim.
points
she
are
has
worth
withdrawn
noting.
her
First,
failure
to
(Pl.’s Opp. Br., Docket Entry 36, at 2, 11
n.5.)
Given Plaintiff’s apparent intention to withdraw this
claim,
the
Defendants’
Defendants’
Court
deems
arguments
opening
it
in
brief
withdrawn
this
and
regard.
mentions
a
will
not
Second,
potential
consider
although
hostile
work
environment claim, there is no further mention of such a claim
in either Plaintiff’s opposition brief or Defendants’ reply.
In
failing to oppose Defendants’ motion in this regard, Plaintiff
has abandoned the hostile work environment claim.
Handling,
1843282,
Inc.
at
*
v.
4
Gen.
n.6
Elec.
Co.,
(N.D.N.Y.
No.
Aug.
2,
See Zinter v.
04-CV-0500,
2005)
2005
WL
(“[B]ased
on
[plaintiff’s] failure to offer any argument in opposition, the
court deems [defendant’s] point conceded . . . .”); see also
Adams v. N.Y. State Educ. Dep’t, 752 F. Supp. 2d 420, 452 n.32
(S.D.N.Y. 2010) (claim deemed abandoned because plaintiff did
9
not
respond
to,
or
even
mention,
claim
in
opposition
to
defendants’ motion to dismiss).
Thus, the Court turns to the remaining issues.
A. Plaintiff’s Discrimination Claim
Defendants
discrimination
disabled
action.
and
claim
seek
summary
because,
Plaintiff
did
judgment
they
not
argue,
suffer
an
on
Plaintiff’s
Plaintiff
adverse
is
not
employment
The Court disagrees.
The ADA prohibits discrimination against a “qualified
individual
on
conditions,
§ 12112(a).
the
and
basis
of
privileges
disability”
of
in
employment.”
the
42
“terms,
U.S.C.
Claims under the ADA, such as the one Plaintiff
raises here, are subject to the same burden-shifting framework
under McDonell Douglas as Title VII claims.
See, e.g., Heyman
v. Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d
Cir. 1999); see also McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
That framework
requires a plaintiff to first establish a prima facie case of
discrimination, after which the burden shifts to the defendant
to
articulate
a
legitimate,
adverse employment action.
138 (2d Cir. 2008).
“the
burden
shifts
nondiscriminatory
reason
for
the
Holcomb v. Iona Coll., 521 F.3d 130,
Once the defendant provides such a reason,
back
to
the
plaintiff
to
demonstrate
by
competent evidence that the legitimate reasons offered by the
10
defendant were not its true reasons, but were a pretext for
discrimination.”
Leibowitz v. Cornell Univ., 584 F.3d 487, 499
(2d Cir. 2009) (internal quotation marks and citations omitted).
To
establish
a
prima
facie
case
under
the
ADA2,
a
plaintiff must show that: (1) her employer is subject to the
ADA; (2) she was disabled within the meaning of the ADA; (3) she
was otherwise qualified to perform the essential functions of
her job, with or without reasonable accommodation; and (4) she
was discharged due to her disability.
Id. at 422; Heyman v.
Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir.
1999) (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70
(2d Cir. 1998)).
Defendants do not dispute the first and third elements
of a prima facie case.
Rather, they begin by arguing that
Plaintiff was not disabled within the meaning of either the ADA
or NYSHRL.
Under the ADA, “disability” means: “A) a physical or
mental impairment that substantially limits one or more of the
major life activities of [an] individual; B) a record of such an
impairment; or C) being regarded as having such an impairment.”
42 U.S.C. § 12102(1); accord Montesano, 956 F. Supp. 2d at 422.
The NYSHRL, more broadly defines “disability” as “a physical,
Plaintiff’s claims pursuant to the NYSHRL are subject to the
same burden-shifting analysis as her claims pursuant to the ADA.
The NYSHRL, however, defines “disability” in broader terms than
the ADA. See Montesano v. Westgate Nursing Home, Inc., 956 F.
Supp. 2d 417, 422 (W.D.N.Y. 2013).
2
11
mental
or
medical
impairment
resulting
from
anatomical,
physiological, genetic or neurological conditions which prevents
the exercise of a normal bodily function or is demonstrable by
medically accepted clinical or laboratory diagnostic techniques
. . . .”
N.Y. EXEC. LAW § 292(21).
Plaintiff asserts that,
although she may not have had a physical or mental impairment
that
substantially
limited
a
major
life
activity,
“regarded” her as having such an impairment.
Defendants
(Pl.’s Opp. Br. at
13-18.)
1. Whether Plaintiff was “Disabled”
“Whether
an
individual
is
‘regarded
as’
having
a
disability depends not on the existence of an actual disability
but
on
the
employer’s
question of intent.”3
perception
of
the
employee
and
is
a
Skinner v. City of Amsterdam, 824 F. Supp.
2d 317, 327-28 (N.D.N.Y. 2010) (internal quotation marks and
citations omitted).
are
working
and
required
that
defined
under
impairment
that
Here, the major life activities at issue
breathing.
Defendants
the
Prior
perceive
ADA--namely
limited
a
major
to
January
Plaintiff
that
life
she
2009,
as
disabled
suffered
activity.
the
from
See,
ADA
as
an
e.g.,
The inquiry under the NYSHRL as it pertains to “regarded as”
claims is the same as that under the ADA. See, e.g., Branson v.
Ethan Allen, Inc., No. 02-CV-6588, 2004 WL 2468610, at *4
(E.D.N.Y. Nov. 3, 2004); Walker v. Consol. Edison Co. of N.Y.,
Inc., No. 00-CV-8598, 2002 WL 31385830, at *4 n.1 (S.D.N.Y. Oct.
22, 2002). The Court will therefore provide a singular
discussion.
3
12
Montesano, 956 F. Supp. 2d at 423 (“With respect to the major
life activity of working, plaintiff must show that defendants
regarded
her
as
significantly
restricted
in
perform a class or a broad range of jobs.”).
her
ability
to
Currently, the ADA
defines “regarded as” to include an impairment “whether or not
the impairment limits or is perceived to limit a major life
activity.”
to
the
42 U.S.C. § 12102(3)(A).
extent
that
Defendants
Plaintiff maintains that,
continued
to
subject
her
to
prohibited acts through February 2009--past the effective date
of
amendments
applies.
to
the
ADA--the
current
iteration
of
the
ADA
(Pl.’s Opp. Br. at 14.)
Under either version of the ADA, there is enough to
defeat summary judgment.
that
Plaintiff’s
environment
in
Certainly, Defendants are correct in
complaints
Warehouse
A
related
and
solely
that
to
asthma
the
or
ambient
breathing
difficulties do not necessarily equate to a disability under the
ADA.
See Gorbea v. Verizon N.Y., Inc., No. 11-CV-3758, 2014 WL
917198,
at
*8
(E.D.N.Y.
Mar.
10,
2014)
(finding
that
the
plaintiff was not disabled because she did not show that it
caused substantial difficulty breathing); Droutman v. N.Y. Blood
Ctr., Inc., No. 03-CV-5384, 2005 WL 1796120, at *6 (E.D.N.Y.
July
27,
2005)
(“Thus,
while
asthma
is
certainly
an
‘impairment,’ it cannot constitute a ‘disability’ under the ADA
unless it substantially limits or significantly restricts the
13
sufferer’s ability to perform a major life activity--in this
case,
work.”
(emphasis
in
original)).
Moreover,
Plaintiff
maintained a second job, thus showing that she was capable of
working,
believe
and
that
Maroni
the
and
work
Roocke
testified
environment
was
that
making
they
did
Plaintiff
not
ill.
(Pl.’s Dep., Docket Entry 34-4 Ex. P, at 36; Maroni Dep., Docket
Entry 37-2 Ex. B, at 30-31; Roocke Dep., Docket Entry 34-4 Ex.
N, at 48.)
On the other hand, all three letters from Defendants
regarding
Plaintiff’s
“disability.”
19,
2008
termination
specifically
refer
to
a
(See Faraci Decl., Docket Entry 34-2, Ex. Z (Dec.
Letter
to
Plaintiff
stating:
“Please
be
advised,
however, that within one year after the termination of your
disability, you may make application to the Nassau County Civil
Service
Commission
for
a
medical
examination.”);
id.
Ex.
BB
(Jan. 28, 2009 Letter to Plaintiff withdrawing Dec. 19, 2008
termination
letter
but
stating
that
Plaintiff
has
“been
continuously absent from and unable to perform the duties of
[her] position for one year or more by reason of a disability”);
id. Ex. CC (Feb. 18, 2009 Letter to Plaintiff stating: “Within
one year after the termination of the disability, you may make
an application to the Nassau County Civil Service Commission for
a
medical
examination
to
be
conducted
by
selected for the purpose by the Commission.”).
14
a
medical
officer
Defendants argue that “disability” as referred to in
the January 28 and February 18, 2009 letters relates to the term
as defined under New York State Workers’ Compensation Law, not
the ADA.
(Defs.’ Br., Docket Entry 34-1, at 17.)
Nonetheless,
letters that explicitly contain language regarding Plaintiff’s
“disability” at least raise a question of fact on this issue.
It is hard to imagine a clearer expression that Defendants at
least may have perceived Plaintiff as being disabled than such
letters.
0756,
See Graham v. Watertown City Sch. Dist., No. 10-CV-
2011
WL
1344149,
at
*8
(N.D.N.Y.
Apr.
8,
2011)
(“By
acknowledging that case law ‘required’ the District to assign
plaintiff to a vacant position and imposed ‘an obligation to
accommodate’
her,
the
District
evidenced
a
perception
that
plaintiff was disabled within the meaning of the ADA.”).
In fact, the letters, and policy, are more troublesome
for Defendants’ case than they acknowledge.
See Warmsley v.
N.Y. City Transit Auth., 308 F. Supp. 2d 114, 121 (E.D.N.Y.
2004) (“[T]he [defendant], by implementing its ‘disability has
terminated’ policy, required individuals returning from medical
leave to be disability-free.
Thus, [defendant] regarded every
former employee who had taken a medical leave as ‘substantially
limited’ in his ability to work in a broad range of jobs.”); see
also Rodriguez v. Atria Sr. Living Grp., Inc., 887 F. Supp. 2d
503, 511 & n.3 (S.D.N.Y. 2012) (noting that a “100% healed”
15
policy prevents individual assessment and therefore violates the
ADA).
Moreover,
unskilled
and
the
Laborer
Defendants
II
rejected
position
was
Plaintiff’s
relatively
doctors’
notes
despite language that she could return and despite any hazards
posed by the air quality within Warehouse A.
See McCowan v.
HSBC Bank USA, N.A., 689 F. Supp. 2d 390, 404 (E.D.N.Y. 2010)
(“Accepting
reasonable
plaintiff’s
inferences
in
evidence
her
as
favor,
true
a
and
drawing
reasonable
jury
all
could
conclude that [defendants] regarded plaintiff as incapable of
performing jobs that required completion of tasks other than
filing and answering telephones.”); Warmsley, 308 F. Supp. 2d at
121 (finding that the plaintiff “was presumptively regarded as
unable to work” where the defendant did not allow plaintiff to
return
despite
continued
to
letters
suffer
from
stating
renal
that,
disease,
although
he
could
plaintiff
return
to
work).
Accordingly, Defendants’ motion for summary judgment
on the grounds that Plaintiff was not disabled is DENIED.
2. Whether Defendants Terminated Plaintiff “Because
Of” Her Disability
Defendants next assert that Plaintiff did not suffer
any adverse action “because of” her disability.
16
Rather, they
assert that she was terminated due to the fact that she was
absent from the job for a year.
“Discriminatory
The Court disagrees.
intent
may
be
inferred
from
the
totality of the circumstances, including . . . the historical
background
events
of
the
leading
up
decision
to
the
.
.
.;
the
challenged
specific
decision
.
sequence
.
.;
of
[and]
contemporary statements by members of the decisionmaking body.”
Kaufman v. Columbia Mem’l Hosp., --- F. Supp. 2d ----, 2014 WL
652886,
at
*11
(N.D.N.Y.
Feb.
19,
2014)
(internal
quotation
marks and citation omitted) (alterations in original).
the
Court
surrounding
finds
that
Plaintiff’s
the
context
termination4
and
sequence
present
enough
Here,
of
events
to
defeat
summary judgment on this point.
First, Plaintiff has presented evidence that she did
not request sick leave, but rather that Mr. Maroni sent her home
against her will.
(See Maroni Dep. at 30; Wagner Dep. at 89.)
In the context of the retaliation claim, Defendants apparently
assert that Plaintiff’s termination is the only potential
adverse employment action. (Defs.’ Br. at 23.) The Court will
discuss that issue more infra. The standard for an adverse
employment action for a discrimination claim, though, is more
stringent than for a retaliation claim. See Galabya v. N.Y.
City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (describing
an adverse employment action as a “materially adverse change in
the terms and conditions of employment”). Precedent suggests
that forced, paid leave is not an adverse employment action for
a discrimination claim. (See Pl.’s Dep. at 89, 100 (indicating
that Plaintiff received paid leave)); Joseph v. Leavitt, 465
F.3d 87, 91 (2d Cir. 2006); Ghaly v. U.S. Dep’t of Agriculture,
739 F. Supp. 2d 185, 199 (E.D.N.Y. 2010).
4
17
Second, Mr. Maroni sent Plaintiff home on a Friday.
Decl. Ex. V.)
(See Faraci
She attempted to return to work that Monday.
(See Faraci Decl. Ex. W.)
Plaintiff has submitted evidence that
the policy at issue did not require that Plaintiff even seek
approval to return to work, and thus Defendants’ rejection of
her attempt was not necessarily justified.
(See Kardisch Decl.,
Docket Entry 36-1 Ex. 1.)
Finally, the contemporaneous statement along with the
termination--namely that Plaintiff had been absent for a year,
seemingly
due
to
her
disability--demonstrates
inference of discrimination.
a
potential
Accordingly, Defendants’ motion
for summary judgment in this regard is DENIED.
3. Legitimate Business Reason and Pretext
Defendants also briefly assert that, even if Plaintiff
could
make
out
a
prima
facie
case,
her
claim
fails
because
Defendants have shown a legitimate, nondiscriminatory reason for
her termination and Plaintiff cannot show pretext.
Again, the
Court disagrees.
Certainly, continued absence for one year or more is a
legitimate,
nondiscriminatory
reason
to
terminate
Plaintiff.
See, e.g., Constance v. Pepsi Bottling Co. of NY, No. 03-CV5009, 2007 WL 2460688, at *24 (E.D.N.Y. Aug. 24, 2007) (finding
that job abandonment or excessive absenteeism is a legitimate
business
reason
for
termination
18
(collecting
cases)).
As
to
pretext, the state of the case law is unclear as to whether
discriminatory
motivating
intent
factor,
must
in
discriminatory action.
be
the
Defendants’
sole
factor,
decision
or
to
only
take
a
a
See, e.g., Parker v. Columbia Pictures,
Indus., 204 F.3d 326, 336-37 (2d Cir. 2000); Jian Wang v. Int’l
Bus. Machs. Corp., No. 11-CV-2992, 2014 WL 901507, at *4 n.3
(S.D.N.Y. Feb. 11, 2014).
Here, though, the February 18, 2009
termination letter itself acknowledges that Plaintiff’s absence
was due to her disability.
(See Faraci Decl. Ex. CC.)
A
reasonable jury could conclude that such evidence demonstrates
that Plaintiff’s perceived disability was the sole motivating
factor in Defendants’ decision to take adverse action.
Thus,
Defendants’ motion for summary judgment is DENIED.
B. Plaintiff’s Retaliation Claim
Defendants also seek summary judgment on Plaintiff’s
retaliation
claim,
asserting
that
Plaintiff’s
claim
fails
because she cannot establish a causal connection between the
protected activity and her termination.
The Court disagrees.
Retaliation claims follow the same McDonnell-Douglas
burden-shifting
framework
discussed
earlier.
The
plaintiff
bears the initial burden of establishing a prima facie case of
retaliation.
Once the plaintiff has satisfied the elements of
his prima facie case, a presumption of retaliation is created
and
the
burden
shifts
to
the
19
defendant
to
“articulate
a
legitimate, non-retaliatory reason for the adverse employment
action.”
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)
(internal quotation marks and citation omitted); see also Rojas
v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 (2d
Cir. 2011).
presented,
In Title VII cases, once such a reason has been
the
presumption
of
retaliation
dissipates
and
the
employee must show that retaliation was the “but-for” cause of
the challenged employment action.
Univ. of Tex. Sw. Med. Ctr.
v. Nassar, --- U.S. ----, 133 S. Ct. 2517, 2533, 186 L. Ed. 2d
503 (2013).
addressed
Neither the Second Circuit nor the parties have
whether
“but
for”
claims pursuant to the ADA.
causation
applies
to
retaliation
See Castro v. City of N.Y., --- F.
Supp. 2d ----, 2014 WL 2582830, at *17 n.34 (E.D.N.Y. June 5,
2014).
In any event,
[t]o establish a prima facie claim of
retaliation in violation of the ADA, a
plaintiff must show that: “(1) [she] engaged
in an activity protected by the ADA; (2) the
employer was aware of this activity; (3) the
employer took adverse employment action
against [her]; and (4) a causal connection
exists between the alleged adverse action
and the protected activity.”
Graham v. Watertown City Sch. Dist., No. 10-CV-0756, 2011 WL
1344149, at *11 (N.D.N.Y. Apr. 8, 2011) (quoting Treglia v. Town
of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)).
not
dispute
that
Plaintiff’s
20
complaints
Defendants do
regarding
the
environment in Warehouse A and her submission to DPW of the
November
21,
protected
Verizon
2007
note
activities.
N.Y.,
Inc.,
from
Dr.
(Defs.’
No.
Seyburn,
Br.
at
11-CV-3758,
for
23.)
2014
example,
See
WL
are
Gorbea
917198,
at
v.
*11
(E.D.N.Y. Mar. 10, 2014) (“Requests for disability accommodation
and
complaints,
conditions
whether
related
activities.”).
to
Nor
elements
of
a
that
there
protected
one’s
do
prima
maintain
formal
about
disability
are
dispute
the
retaliation
is
no
and
activities
informal,
alleged
they
facie
or
causal
the
second
case.
action
protected
and
third
However,
connection
adverse
working
they
between
of
any
Plaintiff’s
termination.
Contrary
Plaintiff’s
to
Defendants’
termination
is
not
assertion,
the
only
however,
potential
adverse
employment action for purposes of her retaliation claim.
“[T]he
key inquiry is whether the effect of defendants’ decision was
‘materially
could
well
adverse,’
dissuade
i.e.,
a
‘harmful
to
reasonable
the
worker
point
from
that
[it]
making
or
supporting a charge of discrimination.’”
Ragusa v. Malverne
Union
90
(2d
Cir.
2010)
165
(2d
Cir.
2010)
Free
(quoting
Sch.
Hicks
Dist.,
v.
381
Baines,
F.
593
App’x
F.3d
85,
159,
(alterations in original)).
Plaintiff
asserts
that
other
adverse
employment
actions included that Defendants forced her to take sick leave,
21
required and rejected her doctors’ notes, and refused to allow
her to return to work.
Requiring doctors’ notes to return from
sick leave is not an adverse employment action, even under the
more lenient standard applicable to retaliation claims.
See,
e.g., Blake v. Potter, No. 03-CV-733, 2007 WL 2815637, at *9
(S.D.N.Y. Sept. 24, 2007); Nicastro v. Runyon, 60 F. Supp. 2d
181,
186
(S.D.N.Y.
1999).
However,
involuntary
leave
or
unjustified charging of sick days can be a sufficient adverse
action.
*22
See Rolon v. Ward, No. 05-CV-0168, 2008 WL 4700705, at
(S.D.N.Y.
plaintiff
Oct.
lost
24,
sick
2008)
leave
(“If
days
the
jury
a
result
as
determines
of
that
defendants’
wrongful charging of sick leave days, this could constitute an
adverse employment action.”); Figueroa v. N.Y. Health & Hosps.
Corp., 500 F. Supp. 2d 224, 234 (S.D.N.Y. 2007) (distinguishing
itself
from
involuntary
an
instance
leave
and
not
where
the
allowed
plaintiff
to
return
was
to
placed
work,
on
which
constituted an adverse action); cf. Bermudez v. City of N.Y.,
783 F. Supp. 2d 560, 581 (S.D.N.Y. 2011) (“The loss of all
vacation and sick days--material benefits of her employment with
the
NYPD--is
sufficient
to
allege
a
materially
adverse
employment action under Section 1981 [retaliation].”).
Thus, Defendants’ contention that there is no temporal
proximity between the protected acts and the adverse employment
acts is disingenuous.
(See Defs.’ Br. at 23.)
22
“‘[A] close
temporal
relationship
protected
activity
and
between
an
a
plaintiff’s
employer’s
sufficient to establish causation.’”
participation
adverse
actions
Here, Plaintiff
submitted a doctor’s note on November 21, 2007.
(Faraci Decl.
Her last day of work was November 30, 2007.
e.g., Pl.’s Dep. at 38.)
be
Graham, 2011 WL 1344149,
at *11 (quoting Treglia, 313 F.3d at 720).
Ex. U.)
can
in
(See,
Plaintiff submits evidence that, at
that time, she was involuntarily placed on sick leave.
Thus,
there is temporal proximity and Defendants’ motion for summary
judgment on Plaintiff’s retaliation claim due to lack of a prima
facie case is DENIED.
Finally, Defendants sought summary judgment only on
the grounds that Plaintiff cannot establish a prima facie case
for
retaliation,
arguments.
show
a
and
Plaintiff
has
likewise
confined
her
Neither party has addressed whether Defendants can
legitimate
business
need
for
the
alleged
retaliatory
acts, Plaintiff’s potential to demonstrate causation, or whether
“but-for” causation even applies.
summary
judgment
finding
in
motion,
Defendants’
as
At this stage, Defendants’
presented,
favor.
does
Defendants
not
warrant
theoretically
a
have
presented a legitimate business reason in placing Plaintiff on
leave and strictly adhering to its policy as well as terminating
Plaintiff upon one year of absenteeism.
Moreover, Plaintiff has
demonstrated that retaliatory motive was at least a potential
23
motivating
factor--if
not
a
but-for
employment actions against her.
about
Warehouse
A,
the
cause--in
taking
adverse
If Plaintiff had not complained
evidence
plausibly
demonstrates
that
Defendants would not have asked her to take leave, nor would she
have been absent, and Defendants would have permitted her to
work as usual.
The parties may--and indeed should--be prepared
to address these issues and the applicable standards in greater
detail in motions in limine and/or in preparation for trial.
C. Damages Pursuant to 42 U.S.C. § 1981a
Finally, Defendants also seek summary judgment insofar
as
Plaintiff
(“Section
seeks
damages
1981a”).
The
pursuant
Court
to
agrees
42
with
U.S.C.
§
1981a
Defendants
that
Plaintiff cannot proceed with her request for punitive damages,
but for reasons other than those argued by Defendants.
Section 1981a allows for “the complaining party” to
“recover[]
compensatory
and
subsection (b) . . . .”
punitive
damages
as
allowed
42 U.S.C. § 1981a(a)(2).
in
Subsection
(b), however, specifically excludes punitive damages against “a
government,
U.S.C.
§
government
1981a(b)(1).
agency
or
political
Accordingly,
subdivision.”
Plaintiff
punitive damages against either the County or DPW.
may
not
42
seek
See Palmieri
v. City of Hartford, 947 F. Supp. 2d 187, 207 (D. Conn. 2013)
(“Courts have found that punitive damages against municipalities
are unavailable under the ADA.”); Liss v. Nassau Cnty., 425 F.
24
Supp. 2d 335, 343 (E.D.N.Y. 2006) (dismissing punitive damages
in an ADA action against Nassau County, Nassau County Department
of Public Works, and the Nassau County Department of Recreation
and Parks); Gemerek v. Buffalo Sewer Auth., No. 99-CV-0879, 2001
WL 603694, at *3 n.5 (W.D.N.Y. May 23, 2001) (finding that the
plaintiff
did
not
have
a
valid
claim
for
punitive
damages
against the Buffalo Sewer Authority, nor could the plaintiff
maintain an action for punitive damages pursuant to the NYSHRL).
To the extent that Plaintiff seeks appropriate damages
other than punitive damages, or that Defendants’ intent is at
all relevant to any further inquiry, these present questions of
fact for the jury.
Supp.
2d
245,
264
See Robinson v. Purcell Const. Corp., 859 F.
(N.D.N.Y.
2012)
(“The
Court
agrees
with
Plaintiff’s proposition that the question of intent cannot be
decided on summary judgment . . . .”).
Defendants’ motion for summary judgment, insofar as it
seeks
dismissal
of
Plaintiff’s
request
for
punitive
pursuant to Section 1981a is GRANTED.
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
25
damages
CONCLUSION
Defendants’ motion for summary judgment is GRANTED IN
PART
and
DENIED
IN
PART.
It
is
GRANTED
as
to
Plaintiff’s
request for punitive damages pursuant to 42 U.S.C. § 1981a.
Defendants’ motion is otherwise DENIED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: July
11 , 2014
Central Islip, NY
26
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