Craddock v. Little Flower Children & Family Services of New York et al

Filing 28

MEMORANDUM & ORDER granting 24 Motion for Summary Judgment; For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 2/25/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
DAVID CRADDOCK,
Plaintiff,
-againstLITTLE FLOWER CHILDREN & FAMILY
SERVICES OF NEW YORK, and
MONROE HALE, as aider and abettor,

MEMORANDUM & ORDER
12-CV-5062(JS)(GRB)

Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Jonathan Bell, Esq.
Melissa Jill Beekman, Esq.
Joshua Matthew Friedman, Esq.
Bell & Kilada, PLLC
1 Old Country Road, Suite 347
Garden City, NY 11514
For Defendants:

Jeltje DeJong, Esq.
Joshua S. Shteierman, Esq.
Devitt Spellman Barrett, LLP
50 Route 111
Smithtown, NY 11788

SEYBERT, District Judge:
Plaintiff David Craddock (“Plaintiff”) commenced this
action

against

his

former

employer,

defendant

Little

Flower

Children & Family Services of New York, (“Defendant” or “Little
Flower”), and Little Flower’s Assistant Executive Director, Monroe
Hale (“Hale”) (collectively “Defendants”), alleging claims of
disability discrimination and retaliation in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
and the New York State Human Rights Law (“NYSHRL”), N.Y. EXEC. LAW

§ 290 et seq.

Currently pending before the Court is Defendants’

motion for summary judgment. (Docket Entry 24.) For the following
reasons, Little Flower’s motion is GRANTED.
BACKGROUND
I.

Factual Background1
This

action

arises

out

Plaintiff’s

employment

and

subsequent termination as a child care worker for Little Flower.
(Compl. ¶ 10.)

Little Flower claims that Plaintiff was terminated

because of “insubordination on 8/25/11, [his] misrepresentation of
the events that occurred on 8/19/11 and a condition that renders
[him] incapable of providing a safe environment for youth . . . .”
(Termination Ltr., Defs.’ Ex. Z, Docket Entry 24-27, at 2.)
Plaintiff disputes this, claiming that Little Flower wrongfully
terminated him based on his disability and also in retaliation for
lodging

complaints

discrimination.

regarding

the

alleged

disability

(Pl.’s 56.1 Counterstmt., Docket Entry 25-1,

¶ 44.)
A.

Little Flower
Little

Flower

is

a

child

welfare

organization

and

residential treatment facility that provides services to children
with behavioral and mental health issues.

(Defs.’ 56.1 Stmt.,

The following facts are drawn from the parties’ Local Civil
Rule 56.1 Statements (“Defs.’ 56.1 Stmt.” and “Pl.’s 56.1
Counterstmt.”) and their evidence in support. Any factual
disputes will be noted.
1

2

Docket Entry 24-28, ¶¶ 3-5.)

Little Flower receives the majority

of its students from placements made by various school districts’
Committees on Special Education (“CSE’s”).
¶ 3.)

(Defs.’ 56.1 Stmt.

Some of the children recommended to Little Flower have been

physically aggressive toward peers or school staff, and many have
been hospitalized for self-mutilation issues, suicidal ideations,
difficulty forming relationships with peers, and struggles with
bipolar disorder.

(Defs.’ 56.1 Stmt. ¶ 4.)

Little Flower also

provides services for a population of children on the autism
spectrum that range from Aspergers to pervasive developmental
disability and mild mental retardation.

(Defs.’ 56.1 Stmt. ¶ 5.)

Due to the severity of the mental health issues of Little Flower’s
children, Little Flower maintains a ratio of one child care worker
to every five students.

(Defs.’ 56.1 Stmt. ¶ 7.)

Plaintiff

disputes this, (Pl.’s 56.1 Counterstmt. ¶ 7), and Little Flower
admits that despite their best efforts, there are times when there
is only one child care worker to supervise a group of five or more
children.

(Defs.’ 56.1 Stmt. ¶ 8.)
Child care workers at Little Flower are responsible for

the supervision of the agency’s children and at times transporting
them to various places, such as school, shopping, and doctor
appointments, both on and off the campus.
¶¶ 11-12.)

(Defs.’ 56.1 Stmt.

Plaintiff worked as a child care worker at Little

3

Flower’s Wading River campus until his termination in November
2011.

(Defs.’ 56.1 Stmt. ¶¶ 9, 44.))
B.

Plaintiff’s Employment History and Termination
Little Flower hired Plaintiff as a child care worker in

2006.

(Defs.’ 56.1 Stmt. ¶ 9.)

When Plaintiff was first hired he

was assigned to San Juan cottage whose residents were largely
medicated and all had behavioral issues. (Defs.’ 56.1 Stmt. ¶ 13.)
About one year later, Plaintiff was reassigned to Claver Cottage
where he worked with male residents ages sixteen and older.
(Defs.’ 56.1 Stmt. ¶ 14.)

Plaintiff found Claver Cottage to be a

more challenging assignment because the residents were older and
therefore

bigger;

thus,

any

physical

interactions

with

the

residents were more difficult to handle. (Defs.’ 56.1 Stmt. ¶ 15.)
Plaintiff was then reassigned to Coretta’s Cottage, where the
residents had even greater special needs.

(Defs.’ 56.1 Stmt.

¶ 16.)

Cottage

Plaintiff

termination in 2011.

remained

at

Coretta’s

until

his

(Defs.’ 56.1 Stmt. ¶ 16.)

During his tenure at Little Flower, residents cursed and
spit at Plaintiff on a daily basis at.
Plaintiff
occasions.

was

also

physically

(Defs.’ 56.1 Stmt. ¶ 17.)

assaulted

(Defs.’ 56.1 Stmt. ¶ 18.)

on

four

separate

While at Claver Cottage, a

resident threw an ottoman at Plaintiff’s face grazing his lip; and
on another occasion, Plaintiff was pushed by a resident, which
caused him to trip over the curb and tear his labrum in his right
4

shoulder.

(Defs.’ 56.1 Stmt. ¶¶ 19-20.)

On yet another occasion,

while restraining a resident, Plaintiff was bitten in the chest.
(Defs.’ 56.1 Stmt. ¶ 21.)

Finally, during a fourth occasion,

Plaintiff was pushed by a resident when he attempted to thwart the
resident’s progress towards Plaintiff’s supervisor.

(Defs.’ 56.1

Stmt. ¶ 22.)
Little Flower child care workers are often injured as a
result of altercations with residents.

(Defs.’ 56.1 Stmt. ¶ 23.)

In total, during the years of Plaintiff’s employment, there were
two-hundred and sixty separate incidents involving Little Flower’s
residents which resulted in injury to child care workers assigned
to the various residential treatments centers.

(Defs.’ 56.1 Stmt.

¶ 24.)
During his employment at Little Flower, Plaintiff, by
his

count,

had

three

seizures.

(Defs.’

Plaintiff “blacks out” when seizing.2

56.1

Stmt.

¶

25.)

(Defs.’ 56.1 Stmt. ¶ 26.)

The first seizure Plaintiff had while working at Little Flower
occurred on April 27, 2006, at the front entrance of San Juan
Cottage, located on the Little Flower campus.
¶ 27.)

(Defs.’ 56.1 Stmt.

Plaintiff had another seizure on April 30, 2008, while on

Plaintiff disputes this statement and contends that he is unable
to describe what occurs when he has a seizure and further asserts
that because residents were always supervised by a second staff
member, at no time was any resident or other staff member injured
as a result of his seizures. (Pl.’s 56.1 Counterstmt. ¶ 26.)
2

5

duty at Claver Cottage.

(Defs.’ 56.1 Stmt. ¶ 28.)

Plaintiff

“blacked out” and could not recall the circumstances before or
after the seizure.

(Craddock Dep. Tr., Defs.’ Ex. F, Docket Entry

24-7, at 64:17-25.)
On September 22, 2008, while operating a motor vehicle
on the Little Flower campus, Plaintiff drove into a light post
located near Claver Cottage.

(Defs.’ 56.1 Stmt. ¶ 29.)

Plaintiff

did not remember what caused the accident and did not recall
driving into the light post.

(Defs.’ 56.1 Stmt. ¶ 29.)

The police

were called and an Incident Report was completed by Officer Gleason
of the Riverhead Police Department.

(Defs.’ 56.1 Stmt. ¶ 29.)

On

February 23, 2009, while driving a motor vehicle on the Little
Flower campus, Plaintiff lost consciousness, causing the vehicle
to jump a curb, drive through a fence and strike a tree.3

(Defs.’

56.1 Stmt. ¶ 31; N.Y. State Police Accident Rep., Defs.’ Ex. M,
Docket Entry 24-14.)
Following

the

February

23,

2009

accident,

Little

Flower’s then-director of Human Resources, Carol Huck (“Huck”),
explained to Plaintiff that due to the two accidents in less than
six months where he could not recall what caused his accident,
Little Flower could no longer allow the Plaintiff to continue

While Plaintiff agrees that the February 23, 2009 New York State
Police Accident Report states that he lost consciousness,
Plaintiff disputes whether he lost consciousness and does not know
what caused the accident. (Pl.’s 56.1 Counterstmt. ¶ 31.)
3

6

driving on campus in consideration of the safety of the children
and staff on campus.
24-8, 45:14-25.)

(Huck Dep. Tr., Defs.’ Ex. G, Docket Entry

Huck offered Plaintiff flexibility in his work

schedule as an accommodation, allowing him the ability not to be
constrained by his assigned shift so long as he could arrange for
transportation to and from work at different hours.

(Defs.’ 56.1

Stmt. ¶ 35; Huck Dep. Tr. 46:5-47:10.)
Little Flower’s Executive Director, Grace Lo Grande
(“Lo Grande”),

informed Plaintiff that he would have to park at

Bishop Cottage’s parking lot, located across the street from the
main Little Flower campus, and that he could no longer drive on
the Little Flower campus.

(Defs.’ 56.1 Stmt. ¶ 32; Huck Dep. Tr.,

45:14-25; Lo Grande Dep. Tr., Defs.’ Ex. D, Docket Entry 24-5,
32:12-20.)

In a July 12, 2009 email, Lo Grande informed Plaintiff

that “[t]here is a serious risk to children and staff, should you
lose control of your vehicle while driving on the main campus.
Therefore,
stands.”

the

decision

to

restrict

driving

onto

the

campus

(Defs.’ 56.1 Stmt. ¶ 33; July 12, 2009 Email, Pl.’s Ex.

23, Docket Entry 25-26.) However, in August 2011, Plaintiff parked
on little Flower’s main campus despite the previously issued
directive not to drive onto the campus due to safety concerns.
(Defs.’ 56.1 Stmt. ¶ 43.)
On June 22, 2009, Plaintiff had a seizure while in an
agency van, just after picking up a resident from a home visit.
7

(Defs.’ 56.1 Stmt. ¶ 37.)

Plaintiff was transported to the

hospital with a co-worker and the resident remained home that
evening, rather than being transported back to Little Flower as
was intended.

(Incident Rep., Defs.’ Ex. S, Docket Entry, 24-20.)

As a result, Little Flower prohibited Plaintiff from going offcampus as a passenger with the residents. (Pl.’s 56.1 Counterstmt.
¶ 37.)
On October 19, 2009, an ambulance was called to the
Little Flower campus to care for Plaintiff, who staff workers
believed

was

having

a

seizure.

(Defs.’

56.1

Stmt.

¶

38.)

According to the infirmary staff, Plaintiff was walking around,
drooling at times, and appeared confused.

(Defs.’ 56.1 Stmt.

¶ 38.)
On August 19, 2011, Plaintiff hit his head on a desk and
fell to the ground while working at Little Flower.
Stmt. ¶ 40.)

(Defs.’ 56.1

Plaintiff was the only child care worker present at

Coretta Cottage at the time of his fall, but a resident of the
cottage was also present for the fall.

(Defs.’ 56.1 Stmt. ¶ 40.)

A Coretta Cottage resident provided a statement that indicated
that Plaintiff came to the front of the cottage to escort a
resident inside when the Plaintiff began to shake and drool from
the mouth and fall to the ground near the staff desk.

(Aug. 25,

2011 Resident Stmt., Defs.’ Ex. U, Docket Entry 24-22.)

The

unsupervised resident then ran outside of the cottage to obtain
8

help from another child care worker, Mike Ford, who attempted to
shake the Plaintiff who appeared unconscious.

(Aug. 25, 2011

Resident Stmt.)
On November 1, 2011, Plaintiff once again fell while
working at Coretta’s Cottage.

(Defs.’ 56.1 Stmt. ¶ 41.)

While

Plaintiff has no recollection of what he was doing prior to the
fall, or how he fell, (Defs.’ 56.1 Stmt. ¶ 41), Plaintiff was found
face down on the floor by the Registered Nurse on duty that evening
after being called by an unaccompanied resident who had reported
that Plaintiff was choking.
Docket Entry 24-23.)
on his cheek.

(Jan. 12, 2012 Email, Defs.’ Ex. V,

Plaintiff eventually sat up and had saliva

(Jan. 12, 2012 Email.)

Plaintiff was nonresponsive

nor did he make eye contact when the Nurse asked how he was feeling.
(Jan.

12,

2012

Email.)

By

letter

dated

November

16,

2011,

Plaintiff was informed that “[his] services as a child care worker
[were] no longer necessary, effective November 15, 2011.”

(Defs.’

56.1 Stmt. ¶ 44.)
C.

Plaintiff’s Complaints
In 2009, after the revocation of his parking privileges,

Plaintiff voiced his discontent to various individuals and on
August 3, 2009, filed a Verified Complaint of Discrimination with
the New York State Division of Human Rights (“NYSDHR”) alleging
disability discrimination.

(Pl.’s 56.1 Counterstmt. ¶ 32.)

On

March 31, 2011, the NYSDHR found that there was “‘no probable cause
9

to believe that [Little Flower] has engaged in or is engaging in
the unlawful discriminatory practice complained of.’”

(Defs.’

56.1 Stmt. ¶ 39; NYSDHR Order, Defs.’ Ex. Q, Docket Entry 24-18.)
Plaintiff never appealed the determination and on May 27, 2011,
the EEOC adopted the NYSDHR’s findings.

(EEOC Dismissal, Defs.’

Ex. R, Docket Entry 24-19.)
Plaintiff commenced this action on October 10, 2012.
Defendants

filed

April 30, 2014.

its

pending

motion

for

summary

judgment

on

(Docket Entry 24.)
DISCUSSION

Defendants
Plaintiff’s claims.
legal

standards

move

for

summary

judgment

on

each

of

The Court will first set forth the applicable

before

turning

to

Defendants’

motion

more

specifically.
I.

Legal Standard
Summary judgment is appropriate 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247, 106 S. Ct. 2505, 2509, 91 L. Ed. 2d 202 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d
265 (1986).

“In assessing the record to determine whether there

is a genuine issue to be tried as to any material fact, the court
is required to resolve all ambiguities and draw all permissible
10

factual inferences in favor of the party against whom summary
judgment is sought.”

McLee v. Chrysler Corp., 109 F.3d 130, 134

(2d Cir. 1997).
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary judgment.”
Id.; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90
S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970).

A genuine factual

issue exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
248, 106 S. Ct. at 2510.

Anderson, 477 U.S. at

To defeat summary judgment, “the non-

movant must ‘set forth specific facts showing that there is a
genuine issue for trial.’”

Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256, 106 S.
Ct. at 2514).

“[M]ere speculation or conjecture as to the true

nature of the facts” will not overcome a motion for summary
judgment.

Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.

1986); see also Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986)
(“Mere

conclusory

allegations

or

denials

will

not

suffice.”

(citation omitted)); Weinstock, 224 F.3d at 41 (“[U]nsupported
allegations do not create a material issue of fact.”).

11

II.

Statutes
A.

ADA
1.

Discrimination

The ADA makes it unlawful for employers to discriminate
against employees on account of a disability.

It states in

relevant part:
No covered entity shall discriminate against
a qualified individual on the basis of
disability in regard to job application
procedures, the hiring, advancement, or
discharge
of
employees,
employee
compensation, job training, and other terms,
conditions, and privileges of employment.
42 U.S.C. § 12112(a).

A disability is defined as: (A) a physical

or mental impairment that substantially limits one or more major
life

activities

of

such

individual;

(B)

a

record

of

such

impairment; or (C) being regarded as having such an impairment .
. . .

Id. at § 12102(1).

“The definition of disability [in the

ADA] shall be construed in favor of broad coverage of individuals
under [the ADA], to the maximum extent permitted by the terms of
[the ADA].”

Id. at 12102(4)(A).

The term qualified individual [under the ADA] means:
[A]n
individual
who,
with
or
without
reasonable accommodation, can perform the
essential functions of the employment position
that such individual holds or desires.
For
the purposes of [the statute], consideration
shall be given to the employer’s judgment as
to what functions of a job are essential, and
if an employer has prepared a written
description
before
advertising
or
12

interviewing applicants for the job, this
description shall be considered evidence of
the essential functions of the job.
Id. at § 12111(8).
2.

Failure to Accommodate

Discrimination under the ADA can occur when an employer
refuses to reasonably accommodate an employee’s disability.

The

term “discriminate against a qualified individual on the basis of
disability” includes: “not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of
such covered entity.”

Id. at § 12112(b)(5)(A).

“Reasonable accommodation” may involve:
(A) making existing facilities used by
employees readily accessible to and usable by
individual with disabilities; and (B) job
restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modifications of equipment or
devices,
appropriate
adjustment
or
modifications
of
examinations,
training
materials or policies, the provision of
qualified readers or interpreters, and other
similar accommodations for individuals with
disabilities.
Id. at § 1211(9).
Employers do not need to accommodate individuals who do
not have an actual disability.

Id. at § 12201(h); see also Morris

13

v. Town of Islip, No. 12-CV-2984, 2014 WL 4700227, at *10 (E.D.N.Y.
Sept. 22, 2014) (“the regarded as theory of disability is no longer
actionable in the context of a failure to accommodate claim”
(internal quotation marks and citation omitted)).
“Undue hardship” is defined as: “[A]n action requiring
significant difficulty or expense . . . .”
The

factors

taken

into

account

when

Id. at § 12111(10)(A).
determining

whether

a

reasonable accommodation would put an undue hardship on a business
include:
(i) the nature and cost of the accommodation
needed under this chapter; (ii) the overall
financial resources of the facility or
facilities involved in the provision of the
reasonable accommodation; the number of
persons employed at such facility; the effect
on expenses and resources, or the impact
otherwise of such accommodation upon the
operation of the facility; (iii) the overall
financial resources of the covered entity; the
overall size of the business of a covered
entity with respect to the number of its
employees; the number, type, and location of
its facilities; and (iv) the type of operation
or operations of the covered entity, including
the composition, structure, and functions of
the workforce of such entity; the geographic
separateness,
administrative,
or
fiscal
relationship of the facility or facilities in
question to the covered entity.
Id. at § 12111(10)(B).
3.

Retaliation

Retaliation against individuals pursuing their rights
under the ADA is prohibited.

The ADA mandates that “[n]o person

14

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 [the ADA].”
B.

Id. at § 12203(a).

New York State Human Rights Law
Under NYSHRL, it is unlawful for an employer to discharge

or discriminate against an individual because of a disability.
The statute states:
It shall be an unlawful discriminatory
practice . . . [f]or an employer . . . ,
because of an individual’s . . . disability,
. . . to refuse to hire or employ or to bar or
to discharge from employment such individual
or discriminate against such individual in
compensation or in terms, conditions or
privileges of employment.
N.Y. Exec. Law. § 296(1)(a).
Disability is defined as:
(a) a physical, 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; or (b) a record of such an
impairment; or (c) a condition regarded by
others as such an impairment, provided,
however, that in all provisions of this
article dealing with employment, the term
shall be limited to disabilities which, upon
the provision of reasonable accommodations, do
not prevent the complainant from performing in
a reasonable manner the activities involved in
the job or occupation sought or held.
15

Id. at § 292(21).
NYSHRL

requires

employers

to

reasonably

accommodate

disabled employees unless such an accommodation would impose and
“undue hardship” on the business.
It shall be an unlawful discriminatory
practice for an employer . . . to refuse to
provide reasonable accommodations to the known
disabilities of an employee . . . . Nothing
contained in this subdivision shall be
construed
to
require
provision
of
accommodations which can be demonstrated to
impose an undue hardship on the operation of
an employer’s . . . business, program or
enterprise.
Id. at § 296(3)(a)-(b).
Reasonable accommodation is defined as:
[A]ctions taken which which permit an employee
. . . with a disability to perform in a
reasonable manner the activities involved in
the job or occupation sought or held and
include, but are not limited to, provision of
an
accessible
worksite,
acquisition
or
modification of equipment, support services
for persons for persons with impaired hearing
or vision, job restructuring and modified work
schedules; provided, however, that such
actions do not impose an undue hardship on the
business . . . from which action is requested.
Id. at § 292(21-e).
NYSHRL does not make use of the “essential functions”
language

present

in

the

ADA,

but

“the

inquiry

into

whether

plaintiff can perform in a reasonable manner the activities in the
job sought under the NYSHRL is the same as the inquiry into whether

16

plaintiff is qualified to perform the essential functions of the
job sought under the ADA.”

Russo v. Sysco Food Serv. of Albany,

L.L.C., 488 F. Supp. 2d 228, 238 (N.D.N.Y. 2007); see also Vinkour
v. Sovereign Bank, 701 F. Supp. 2d 276, 293 (E.D.N.Y. 2010) (“[t]o
establish a prima facie failure to accommodate claim under the
[NYSHRL] . . . a plaintiff must demonstrate that . . . she was
otherwise qualified to perform the essential functions of her job
with reasonable accommodation”).
“[U]ndue hardship” is defined as “significant difficulty
or expense to the employer.” 9 N.Y.C.R.R. § 466.11(b)(2). Factors
to

be

taken

into

account

when

determining

if

a

reasonable

accommodation imposes an undue hardship include:
(i) The overall size of the business . . .
with respect to the number of employees,
number and type of facilities, and size of
budget; (ii) The type of operation which the
business, program or enterprise is engaged in,
including the composition and structure of the
workforce; and (iii) The nature and cost of
the accommodation needed.
N.Y. EXEC. LAW § 296(3)(b).
Retaliation is also prohibited under the NYSHRL, which
provides that:
It shall be an unlawful discriminatory
practice . . . [f]or any employer, labor
organization
or
employment
agency
to
discharge, expel or otherwise discriminate
against any person because he or she has
opposed any practices forbidden under this
article or because he or she has filed a

17

complaint, testified or assisted
proceeding under this article.

in

any

N.Y. EXEC. LAW § 296(1)(e).
III. McDonnell Douglas Burden-Shifting Framework
Claims

for

disability

discrimination

or

retaliation

under the ADA and the NYSHRL4 are all analyzed using the burdenshifting framework articulated by the United States Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973).

McMillian v. City of N.Y., 711 F.3d 120,

125 (2d Cir. 2013) (applying McDonnell Douglas framework and
denying summary judgment where there was a material issue of fact
regarding whether timeliness in the morning was an “essential
function” of schizophrenic plaintiff’s employment and whether
reasonable accommodation was available); see also McBride v. BIC
Consumer Prods. Mfg. Co., 583 F.3d 92, 96-98 (2d Cir. 2009)
(applying McDonnell Douglas framework and finding that employee
who worked with various chemical fumes failed to show that there

Discrimination and retaliation claims under the NYSHRL are
analyzed identically and have the same outcome as their federal
counterparts. See Hyek v. Field Support Servs., Inc., 461 F.
App’x 59, 60 (2d Cir. 2012) (“Claims brought under the NYSHRL
are analyzed identically and the outcome of an employment
discrimination claim made pursuant to the NYSHRL is the same as
it is under Title VII.” (ellipsis omitted) (internal quotation
marks and citation omitted)); Kemp v. Metro-North R.R., 316 F.
App’x 25, 26 (2d Cir. 2009) (“We analyze claims under the NYSHRL
using the same standards that apply to federal civil rights
statutes such as Title VII . . . and the ADA.” (citations
omitted)). Thus, the Court will provide singular discussions
for Plaintiff’s NYSHRL claims and their federal counterparts.
4

18

was a reasonable accommodation of her respiratory ailment that
employer could have pursued beyond its offer to provide her with
a respirator that would deliver breathable air during working
hours, which she rejected).
The Second Circuit has described the McDonnell Douglas
framework as follows:
Under McDonnell Douglas, plaintiff bears the
initial burden of proving by a preponderance
of the evidence of a prima facie case of
discrimination . . . . The burden of
production then shifts to defendants, who must
offer through the introduction of admissible
evidence a non-discriminatory reason for their
actions that, if believed by the trier of
fact, would support a finding that unlawful
discrimination was not a cause of the disputed
employment action. Plaintiff then must show
that the proffered reason was merely a pretext
for discrimination, which may be demonstrated
either by the presentation of additional
evidence showing that the employer’s proffered
explanation is unworthy of credence, or by
reliance on the evidence comprising the prima
facie case, without more.
Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Prog., Inc., 198 F.3d 68, 72 (2d Cir. 1999) (internal
quotation marks and citations omitted).

In essence, (1) “[a]

plaintiff must establish a prima facie case;” (2) “the employer
must offer through the introduction of admissible evidence a
legitimate non-discriminatory reason for the discharge;” and (3)
“the plaintiff must then produce evidence and carry the burden of
persuasion that the proffered reason is a pretext.”

19

McBride, 583

F.3d at 96 (internal quotation marks and citation omitted).

“In

discrimination claims based both on adverse employment actions and
on failures to accommodate, the plaintiff bears the burdens of
both

production

and

persuasion

as

to

the

existence

of

some

accommodation that would allow [him] to perform the essential
functions

of

[his]

employment.”

McMillan,

711

F.3d

at

126

(internal quotation marks and citation omitted; alterations in
original).

With this framework in mind, the Court turns to

Defendants’ grounds for summary judgment on each of Plaintiff’s
claims.
IV. Little Flower’s Motion
Defendants

move

for

summary

judgment

on

each

of

Plaintiff’s claims, arguing that Plaintiff can neither establish
his prima facie case nor prove that Little Flower’s stated reason
for

terminating

his

employment

was

a

pretext

for

unlawful

discrimination or retaliation under the standards governing claims
brought pursuant to the ADA and the NYSHRL.

As discussed below,

the Court finds that summary judgment is appropriate on all claims
asserted.
A.

Disability Discrimination
As

Plaintiff

previously

first

discrimination.

must

noted,

to

establish

survive
a

prima

summary
facie

judgment,
case

of

To do so, Plaintiff must show that: (1) his

employer is subject to the ADA; (2) he suffers from a disability
20

within

the

meaning

of

the ADA;

(3)

he

was

otherwise qualified to perform the essential functions of his job,
with or without reasonable accommodation; and (4) he suffered an
adverse employment action because of his disability.

See Jacques

v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004) (citing Cameron
v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.
2003)); Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d
Cir. 2003).
With respect to the third element, “it is generally the
responsibility of the individual with a disability to inform the
employer that an accommodation is needed.”

McElwee v. Cty. of

Orange, 700 F.3d 635, 641-42 (2d Cir. 2012) (internal quotation
marks and citation omitted).

“Once the plaintiff has demonstrated

that there is a ‘plausible accommodation, the costs of which,
facially, do not clearly exceed its benefits,’ the defendant bears
the burden of proving that the requested accommodation is not
reasonable.”

Id. at 642 (quoting Borkowski v. Valley Cent. Sch.

Dist., 63 F.3d 131, 138 (2d Cir. 1995)).

Only then does the burden

shift to the defendant to prove that “the requested accommodation
is not reasonable.”

Id.

The first two elements of Plaintiff’s prima facie case
are not in dispute.

Little Flower is covered by the ADA and on

notice of Craddock’s disability.

The pertinent inquiry before the

Court

facie

as

to

Plaintiff’s

prima

21

case

is

whether

he

can

establish that he was qualified to perform the essential functions
of his job, with or without a reasonable accommodation, or that
the circumstances surrounding his termination give rise to an
inference of discriminatory animus.

(Defs.’ Br., Docket Entry 24-

29, at 15.)
Little Flower argues that due to the “mental, emotional
and developmental disabilities that the children of Little Flower
have, constant supervision and awareness of their activities is an
essential function of the child care worker position there.”
(Defs.’ Br. at 15.) Plaintiff contends that “constant” supervision
is not necessary by each individual child care-worker because New
York State law mandates a one child care-worker to nine or fewer
children ratio for authorized agencies such as Little Flower.

(18

N.Y.C.R.R. § 442.18(d)(2)(i); Pl.’s Br., Docket Entry 25-3, at 9.)
Plaintiff also acknowledges that he was always assigned to work
with

another

cottages.

child

care

worker

when

on

duty

in

the

various

(Pl.’s Br. at 9.)
In

order

to

prevail

on

a

claim

of

disability

discrimination, an actually or regarded as disabled Plaintiff must
demonstrate that they were otherwise capable of performing the
job.

A “[p]laintiff is not otherwise qualified unless he is able,

with or without reasonable accommodation, to perform the essential
functions of the job in question.”

Stamey v. NYP Holdings,

Inc., 358 F. Supp. 2d 317, 323 (S.D.N.Y. 2005); see also 42 U.S.C.
22

§

12111(8).

“‘Essential functions’

‘fundamental’ to the job in question.”

are

duties

that

are

Vandenbroek v. PSEG Power,

CT LLC, 356 F. App’x 457, 459 (2d Cir. 2009) (summary order)
(citing Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.
1997)).
accord

“In determining which duties are fundamental, [courts]
‘considerable

deference

to

an

employer’s

judgment.’”

Id. (quoting D'Amico v. City of N.Y., 132 F.3d 145, 151 (2d Cir.
1998)).

Generally speaking, however, a plaintiff can discharge

their burden by demonstrating that they possess the “‘basic skills
necessary for the performance of [the] job.’”
Morgan

Chase

Corp., 740

F.

Supp.

2d

561,

Mattera v. JP
572

(S.D.N.Y.

2010) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d
87, 92 (2d Cir. 2001)) (alteration in original).
Inextricably intertwined with a plaintiff’s burden on
this element is an employer’s potential defense that, because of
the

employee’s

actual

or

perceived

disability,

he

or

she

constitutes a “direct threat” to themselves or others and is
thereby unqualified for the position.

42 U.S.C. § 12113(b); N.Y.

COMP. CODES R. & REGS. tit. 9, § 466.11(g)(2).

A “direct threat” is

defined as “a significant risk to the health or safety of others
that cannot be eliminated by reasonable accommodation.”
§ 12111(3).

42 U.S.C.

In order to be a significant risk, “the probability

of significant harm must be substantial, constituting more than a
remote

or

slightly

increased

risk.”
23

Hatzakos

v.

Acme

Am.

Refrigeration,

Inc., No.

03–CV–5428,

2007

WL

2020182,

at

*9

(E.D.N.Y. July 6, 2007); see also 29 C.F.R. pt. 1630, app. §
1630.2(r); Hamlin v. Charter Twp. Of Flint, 165 F. 3d 426, 432 (6th
Cir. 1999) (“An employer ... is not permitted to deny an employment
opportunity to an individual with a disability merely because of
a slightly increased risk. The risk can only be considered when it
poses a significant risk, i.e. high probability, of substantial
harm; a speculative or remote risk is insufficient.”). An employer
can avail itself of this defense if it conducts “‘an individualized
assessment of the employee’s present ability to safely perform
the essential functions of the job . . . based on a reasonable
medical judgment that relies on the most current medical knowledge
and/or on the best available objective evidence.’”

Sista v. CDC

Ixis N. Am., Inc., 445 F.3d 161, 170 (2d Cir. 2006); quoting 29
C.F.R. § 1630.2(r); see also N.Y. COMP. CODES R. & REGS. tit 9,
§ 466.11(g)(2)(ii).

An

individualized

assessment

involves

a

consideration of: “(1) [t]he duration of the risk; (2) [t]he nature
and severity of the potential harm; (3) [t]he likelihood that the
potential harm will occur; and (4) [t]he imminence of the potential
harm.”

Hatzakos, 2007 WL 2020182, at *9.
In light of the nexus between the essential functions

element and the direct threat defense, many courts singularly
analyze the issue.

See Nelson v. City of N.Y., No. 11-CV-2732,

2013 WL 4437224, at *9 (S.D.N.Y. Aug. 19, 2013) (collecting cases).
24

“Whether an individual creates a direct threat to the health or
safety of others must depend on an individualized assessment of
the individual’s present ability to safely perform the essential
functions of his job.”

Shepheard v. City of N.Y., 577 F. Supp. 2d

669, 676 (S.D.N.Y. 2008) (internal quotation marks and citation
omitted).

The Shepheard court held that a correction officer was

not qualified to perform the essential functions of her job due to
the physical manifestations of her depression which prevented her
from being able to quickly respond to emergencies involving inmates
and, accordingly, threatened the safety of other inmates and fellow
officers.

Id. at 677.

As in Shepheard, the manifestation of

Plaintiff’s disability renders him unable to ensure the safety of
the children under his care.
During Plaintiff’s tenure with Little Flower, there were
eight separate incidents of unconsciousness where Plaintiff was
rendered incapable of providing constant supervision over the
children in his care.

(Defs.’ Br. at 16.)

Two of Plaintiff’s

eight incidents occurred while Plaintiff was operating a vehicle
while on the Little Flower campus and in both incidents, Plaintiff
could not recall the cause of the accident, nor the accident
itself.

(Craddock Dep. Tr., 66:25-67:3, 69:4-14.)

Notably,

Plaintiff’s last two incidents prior to his termination left
residents unsupervised while in Plaintiff’s care.
Resident Stmt.; Jan. 12, 2012 Email.)
25

(Aug. 25, 2011

Plaintiff has acknowledged

that

when

the

incidents

occur

he

“blacks

out”

and

recollection of the events before or after the seizure.
Dep. Tr., 55:2-12.)

has

no

(Craddock

It is not within Little Flower’s ability to

create an environment that ensures Plaintiff is always surrounded
by other aides to care for the children should he have a seizure.
While Plaintiff is correct that the cottages are equipped with
surveillance cameras, they are not continually monitored (Hale
Dep. Tr., Defs.’ Ex. C, Docket Entry 24-4, 24:2-12.)

Further,

there are times that Plaintiff may be left alone with residents
while fellow child care workers are busy attending to other
residents.

The record indicates that Plaintiff’s ability to

perform the essential functions of his job as a child care worker
at Little Flower, such as constant supervision and assurance of
the well-being of the residents within his care, was impaired by
his seizures and the blackouts they caused, thus threatening the
safety of the residents within Plaintiff’s care.

Accordingly,

Plaintiff was not qualified to perform the essential functions of
his job, with or without accommodation.
B.

Reasonable Accommodations
The Plaintiff asserts a claim for failure to reasonably

accommodate

him,

which

is

based

on

two

distinct

premises:

(i) Little Flower failed to accommodate him with modifications to
his child-care duties and/or “identify an alternate position”
(Pl.’s Br. at 12); and (ii) Little Flower also failed to engage
26

him in an interactive process in order to assess his needs and
determine

the

appropriateness

of

a

reasonable

accommodation.

Little Flower contends that summary judgment is appropriate with
respect to both aspects of his claims.
An employer may be liable under the ADA if it “‘fails to
make reasonable accommodations to the known physical or mental
limitations
disability.’”

of

an

otherwise

qualified

[employee]

with

a

Morris v. Town of Islip, No. 12–CV–2984, 2014 WL

4700227, at *12, (E.D.N.Y. Sept. 22, 2014) (quoting Cody v. Cty.
of Nassau, 577 F. Supp. 2d 623 (E.D.N.Y. 2008), aff’d, 345 F. App’x
717 (2d Cir. 2009)); see 42 U.S.C. § 12112(b)(a).

In this regard,

Plaintiff’s prima facie burden requires him to establish “‘that
(1) [he] is a person with a disability under the meaning of the
ADA; (2) an employer covered by the statute had notice of his
disability; (3) with [or without] reasonable accommodation, [he]
could perform the essential functions of the job at issue; and (4)
the employer has refused to make such accommodations.’”

Scalera

v. Electrograph Sys., Inc., 848 F. Supp. 2d 352, 360 (E.D.N.Y.
2012) (quoting Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d
Cir. 2006)).
The burden-shifting framework set forth in McDonnell
Douglas, outlined above, applies to claims based on failure to
accommodate.

See id.

Accordingly, after the plaintiff makes

a prima facie showing of a failure to accommodate, the burden
27

shifts to the defendants to demonstrate that the plaintiff’s
proposed accommodation would result in an undue hardship.

See

Diaz v. Local 338, No. 13–CV–7187, 2015 U.S. Dist. LEXIS 86777, at
*72 (E.D.N.Y. May 15, 2015), Report and Recommendation adopted,
2015 WL 5158511 (E.D.N.Y. July 2, 2015) (internal quotation marks
and citation omitted); see also Scalera, 848 F. Supp. 2d at 360
(holding, in an ADA case, that “once Plaintiff puts forth a prima
facie case, the burden shifts to the employer to demonstrate that
the employee’s proposed accommodation would result in an undue
hardship”) (citing Stone v. City of Mount Vernon, 118 F.3d 92, 97
(2d Cir. 1997); E.E.O.C. v. Yellow Freight Sys. Inc., No. 98–CV–
2270, 2002 WL 31011859, at *11, (S.D.N.Y. Sept. 9, 2002)); cf.
United States v. N.Y. City Tr. Auth., No. 04–CV–4237, 2010 WL
3855191,
analogous

at

*16,

(E.D.N.Y.

context,

that

Sept.

“[o]nce

28,

2010)

a prima

(holding,

facie case

in

an

[based

on

failure to reasonably accommodate] is established, the burden
shifts to the employer to show that it could not reasonably
accommodate plaintiff without undue hardship”) (citing Philbrook
v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985), aff’d
& remanded on other grounds, 479 U.S. 60, 107 S. Ct. 367, 93 L.
Ed. 2d 305 (1986)).
accommodations

does

A claim based on a failure to make reasonable
not

discriminatory animus.

require

the

plaintiff

to

show

a

See Scalera, 848 F. Supp. 2d at 362.

Rather, it is sufficient to establish that a covered entity failed
28

to fulfill its affirmative duty to make a reasonable accommodation
for

the

known

employee.

physical

or

mental

limitations

of

a

disabled

See id.
“‘On

the

issue

of

reasonable

accommodation,

the

plaintiff bears only the burden of identifying an accommodation,
the

costs

benefits.’”

of

which,

facially,

do

not

clearly

exceed

its

Feeley v. N.Y. City Police Dep't, No. 97–CV–2891,

2001 WL 34835239, at *9 (E.D.N.Y. Sept. 4, 2001) (quoting Borkowski
v.

Valley

Cent.

Sch.

Dist., 63

F.3d

131,

139

(2d

Cir.

1995)); see Jackan v. N.Y. State Dep’t of Labor, 205 F.3d 562, 567
(2d Cir. 2000) (noting that the plaintiff's burden is not a heavy
one and “[i]t is enough . . . to suggest the existence of a
plausible accommodation, the costs of which, facially, do not
clearly exceed its benefits” (quoting Borkowski, 63 F.3d at 138)).
Relevant here, while the statute contemplates that “[a] reasonable
accommodation may include reassignment to a vacant position,”
Thompson v. N.Y. City Dep’t of Prob., 348 F. App’x 643, 645 (2d
Cir. 2009) (citing 42 U.S.C. § 12111(9)), “the employer need not
find or create a position for the employee,” id. (citing Daugherty
v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995.

In fact,

“[a]n ADA plaintiff seeking accommodation in the form of a transfer
bears the burden of proving that a vacancy existed into which he
or she might have been transferred.”
at 566).
29

Id. (citing Jackan, 205 F.3d

The Second Circuit has condensed the relevant legal
principles into a two—step test: “First, ‘the plaintiff bears the
burden of proving . . . that an accommodation exists that permits
her to perform the job’s essential functions.’

If the plaintiff

meets that burden, the analysis shifts to the question whether the
proposed accommodation is reasonable; on this question the burden
of persuasion lies with the defendant.”

Jackan, 205 F.3d at 566

(citations omitted).
It

is

well-settled

‘interactive

process’

together

assess

to

reasonably

by

§ 1630.2(o)(3).

which

whether

accommodated.”

that

employers

an
Id.

“[t]he

ADA
and

employee’s
(citation

envisions
employees

disability

omitted);

an
work

can

29

be

C.F.R.

“To satisfy its ADA obligations in this regard,

an ‘employer must first identify the full range of alternative
positions

for

which

the

individual

satisfies

the

employer’s

legitimate, nondiscriminatory prerequisites, and then determine
whether the employee’s own knowledge, skills, and abilities would
enable her to perform the essential functions of those alternative
positions, with or without reasonable accommodation.’”
N.Y.

City

Tr.

Auth., 154

F.

Supp.

2d

640

Felix v.

(S.D.N.Y.

2001),

aff’d, 324 F.3d 102 (2d Cir. 2003) (quoting Dalton v. Subaru–Isuzu
Auto., Inc., 141 F.3d 667, 668 (7th Cir. 1998)).
However, it is critical to note that the failure to
engage in an interactive process does not, itself, “form the basis
30

of an ADA claim in the absence of evidence that accommodation was
possible.”

McBride, 583 F.3d at 100.

As a result, evidence of an

employer's failure to engage in an interactive process “does not
allow a plaintiff to avoid summary judgment unless she also
establishes

that,

at

least

with

the

aid

of

some

identified

accommodation, she was qualified for the position at issue.”

Id.

“An employee who is responsible for the breakdown of
that interactive process may
accommodate.”

not

recover

for

a

failure

to

Nugent v. St. Lukes–Roosevelt Hosp. Ctr., 303 F.

App’x 943, 946 (2d Cir. 2008).

In evaluating a claim for failure

to accommodate, therefore, “courts should attempt to isolate the
cause

of

the

breakdown

assign responsibility.”

[of

the interactive process]

and

then

Beck v. Univ. of Wis. Bd. of Regents, 75

F.3d 1130, 1135–36 (7th Cir. 1996) (“[C]ourts should look for signs
of failure to participate in good faith or failure by one of the
parties

to

make

reasonable

efforts

to

help

the

other

party

determine what specific accommodations are necessary.”).
Plaintiff’s contention that Little Flower failed to
reasonably accommodate him is without merit.
burden of identifying an accommodation.

Plaintiff bears the

To that end, he asserts

that he should have either (a) been assured that he was never alone
with residents or (b) been “afforded an opportunity to identify an
alternate position” for which he could “perform the essential
functions of.”

(Pl.’s Br. at 12.)
31

As to the first of Plaintiff’s proposed accommodations,
Plaintiff has failed to present any evidence suggesting that Little
Flower could ensure that Plaintiff would never be left alone with
residents.

In

fact,

Little

Flower

reasonably

accommodated

Plaintiff by relieving his requirement of driving residents, a
requirement that all other childcare workers had. (Huck Dep. Tr.
30:9-10.)

Little

Flower

further

accommodated

Plaintiff

by

providing flexibility in his work schedule (Huck Dep. Tr. 46:516), and for a short time also provided Plaintiff with a place to
park immediately adjacent to the main campus.
32:12-20.)

(Lo Grande Dep. Tr.

There is simply no accommodation that would ensure

that residents are never left unsupervised with Plaintiff without
creating an undue burden on Little Flower, or eliminating the
essential function of Plaintiff’s child-care job, which is to
supervise and ensure the safety of the residents.
Similarly, Plaintiff’s suggestion that Little Flower was
never afforded an opportunity to identify an alternate position
for

which

he

could

perform

the

essential

insufficient to defeat summary judgment.

functions

of

is

As in Jackan, Plaintiff

has failed to present evidence that there were any vacant positions
at

Little

Flower

that

he

could

have

been

transferred

to.

Additionally, during the arbitration proceeding that preceded the
instant case, Little Flower proposed reassigning Plaintiff to a
maintenance position, which Plaintiff rejected and made clear that
32

he was not qualified for it, and was only qualified to perform
childcare.

(Lo Grande Dep. Tr. 57:2-12.)
Plaintiff’s allegations that Little Flower failed to

engage him in an interactive process are also without merit.
record

makes

clear

that

Plaintiff

at

no

time

The

requested

an

accommodation and refused to acknowledge that he required an
accommodation.
that

“an

However, the law in the Second Circuit recognizes

employer

has

a

duty reasonably to accommodate an

employee’s disability if the disability is obvious--which is to
say, if the employer knew or reasonably should have known that the
employee was disabled,” whether or not the employee has requested
an

accommodation

disability.
Cir.

or

even

acknowledges

that

she

has

a

Brady v. Wal–Mart Stores, Inc., 531 F.3d 127, 135 (2d

2008).

Here,

although

Plaintiff

never

requested

an

accommodation, once Little Flower became aware of Plaintiff’s
disability, it provided him with accommodations by removing his
driving

responsibilities

and

granting

him

a

schedule. (Huck Dep. Tr. 29:5-30:10, 46:13-16.)
clearly

initiated

the

interactive

process

flexible

work

Little Flower

although

Plaintiff

consistently maintained that the eight incidents had nothing to do
with his disability and never participated in the interactive
process with Little Flower to help determine further possible
accommodations.

33

In sum, Plaintiff does not offer any evidence to create
a genuine issue of material fact that Little Flower terminated his
employment because of a disability.

Thus, Plaintiff has failed to

establish an inference of discrimination, and Little Flower’s
motion

for

summary

judgment

on

Plaintiff’s

disability

discrimination claims under the ADA and the NYSHRL are therefore
GRANTED.
C. Retaliation Under the ADA and NYSHRL
Title V of the ADA prohibits discrimination in the form
of retaliation against any individual who “has opposed any act or
practice made unlawful by this chapter.”

42 U.S.C. § 12203(a).

Claims of retaliation are analyzed under the McDonnell Douglas
framework, discussed above. See, e.g., Treglia v. Town of Manlius,
313 F.3d 713, 719 (2d Cir. 2002).

In order to state a prima facie

case of retaliation, “plaintiff must establish that (1) [he] was
engaged in an activity protected by the ADA, (2) the employer was
aware of that activity, (3) an employment action adverse to the
plaintiff occurred, and (4) there existed a causal connection
between
action.”

the

protected

activity

and

the

adverse

employment

Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234

(2d Cir. 2000). “Protected activity” includes “oppos[ing] any act
or practice made unlawful by this chapter,” as well as “ma[king]
a charge, testif[ying], assist[ing], or participat[ing] in any
manner in an investigation, proceeding or hearing under this
34

chapter.”

42 U.S.C. § 12203(a).

Once a plaintiff makes a prima

facie case, the burden shifts to the defendant to show legitimate,
nondiscriminatory business reasons for the employment action.
Sista, 445 F.3d at 169.

See

Thereafter, Plaintiff may again show that

the reasons provided are pretextual.

See id.

Assuming the first three prongs on the prima facie case
are met, Little Flower argues, with respect to the final prong,
that Plaintiff’s claim lacks a temporal proximity between the
protected activity and the alleged retaliation.
23.)

(Defs.’ Br. at

As set forth below, Plaintiff alleges that Little Flower

terminated his employment in 2011, in retaliation for complaints
made in 2009 that culminated in the filing of an EEOC complaint in
August 2009.

At his deposition, Plaintiff testified as follows:

Q: Other than the fact that you filed an EEOC
Claim in 2009, do you have any factual
knowledge that would indicate to you that your
firing was retaliatory?
A: No.
Q: You have no personal knowledge that your
termination was retaliatory other than the
fact that you filed your 2009 EEOC complaint?
A: That’s correct.
(Craddock Dep. Tr. 92:7-16; Pl.’s Br. at 23-24.)

Defendants

contend that Plaintiff was terminated for a legitimate business
reason--namely his failure to provide constant supervision of the
children under his care.

(Defs.’ Br. at 23.)

35

Plaintiff’s retaliation claim fails because “the mere
filing of such a complaint does not insulate an employee from
subsequent discipline or discharge by his employer, nor create an
automatic presumption that any subsequent employer action adverse
to the employee is retaliatory in nature.”

Spencer v. The Perrier

Group of Am., No. 95-CV-8404, 1997 WL 282258, at *1 (S.D.N.Y.
May 28, 1997).

The Plaintiff must demonstrate a “nexus between a

specific grievance and a specific adverse action” in order to find
that proximity established causality.

Edwards v. Horn, No. 10-

CV-6194, 2012 WL 760172, at *17 (S.D.N.Y. Mar. 8, 2012); see also
Andino v. Fischer, 698 F. Supp. 2d 362, 385 (S.D.N.Y. 2010)
(finding that the temporal proximity between the complaints was a
result of the “large number of grievances in a short period of
time”).

Further, courts in this Circuit have found that “when

more than three months have passed between a protected activity
and an allegedly retaliatory response, the Second Circuit has
deemed

the

evidence

concerning causation.”

insufficient

to

raise

an

issue

of

fact

Jimenez v. City of N.Y., 605 F. Supp. 2d

485, 528 (S.D.N.Y. 2009); see also Hollander v. Am. Cvanamid
Co., 895 F.2d 80, 86 (2d Cir. 1990) (finding period of three months
insufficient to establish temporal proximity); Miller v. Norton,
No. 04-CV-3223, 2008 WL 905830, *7 (E.D.N.Y. Mar. 31, 2008)
(finding no temporal proximity where more than one year elapsed
between filing of complaint and failure to promote); Fitch v. R.J.
36

Reynolds

Tobacco

Co., 675

F.

Supp.

133,

138

(S.D.N.Y.

1987) (finding period of seven months insufficient).
Here, Plaintiff’s termination occurred on November 18,
2011, over two years after the filing of his EEOC complaint
charging Little Flower with discriminating against him because of
his disability.

This two-year time period falls substantially

outside the established general time-frame used when determining
temporal proximity.

Accordingly, Plaintiff has failed to adduce

any evidence to support his claim of retaliation and Defendants’
motion for summary judgment on Plaintiff’s retaliation claims
under the ADA and the NYSHRL are therefore GRANTED.
D.

There is no Individual Liability for ADA Discrimination
or Retaliation Claims
Plaintiff

alleges

that

Little

Flower’s

Executive

Assistant Director, Hale, aided, abetted, incited, compelled,
and/or coerced the alleged unlawful conduct in violation of the
ADA.

(Compl., ¶¶ 32, 46.)
“Because an individual is not an ‘employer’ under Title

VII, an individual is also not an ‘employer’ under the ADA and,
therefore,

may

not

be

liable

for

disability

discrimination.”

Ivanov v. N.Y. City Transit Auth., No. 13-CV-4280, 2014 WL 2600230,
at *5 (S.D.N.Y. June 5, 2014); Corr v. MTA Long Island Bus, 27 F.
Supp. 2d 359, 370 (E.D.N.Y. 1998) (“In light of Tomka, and the
overwhelming authority in the Second Circuit construing Tomka as

37

prohibiting individual liability under the ADA, Plaintiff’s ADA
claim against [individual defendants] must be . . . dismissed.”),
aff’d, 199 F.3d 1321 at *2 (2d Cir. 1999) (“We also agree with the
district court that . . . there is no right of recovery against
individual defendants under the ADA.”

(citing Tomka, 66 F.3d at

1314)).
Similarly, an individual may not be liable under the
retaliation provision of the ADA.

Because the remedial provisions

of Title VII do not provide for individual liability, “it follows
that, in context of employment discrimination, the retaliation
provision of the ADA, which explicitly borrows the remedies set
forth in [Title VII], cannot provide for individual liability.”
Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010).
Accordingly, Defendants’ motion for summary judgment
dismissing Plaintiff’s ADA discrimination and retaliation claims
against Monroe Hale is GRANTED.
E.

Plaintiff’s NYSHRL Claims Against Defendant Hale
Plaintiff seeks to hold Executive Assistant Director

Hale

individually

liable

for

against him under the NYSHRL.

discrimination

and

retaliation

(Compl. ¶¶ 39, 53.)

Unlike the ADA, the NYSHRL provides for the imposition
of liability on individual defendants under two of its provisions:
§§ 296(1) and 292(6), “Individual liability under § 296(1) lies
only where a defendant actually participates in the conduct giving
38

rise

to

discrimination,

ownership

interest

or

and

is

limited

supervisors,

to

who

authority to hire and fire employees.”

individuals

themselves

with

have

the

Hubbard v. No Parking

Today, Inc., No. 08-CV-7228, 2010 WL 3835034, at *10 (S.D.N.Y.
Sept.

22,

omitted).

2010)

(internal

quotation

marks

and

citation

Section 296(6) of the NYSHRL provides for “aiding and

abetting” § 296(1)(a) violations, explaining that “‘ [i]t shall be
an unlawful discriminatory practice for any person to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden
under this article or to attempt to do so.’”
EXEC. LAW

§

296(6)).

To

be

found

liable

Id. (quoting N.Y.

under §

296(6),

an

individual need not have supervisory or hiring and firing power,
but still must have “actually participated in the conduct giving
rise to the claim of discrimination.”

Id. (internal quotation

marks and citation omitted).
“However, liability under the [NYS]HRL and the NYCHRL
must first be established as to the employer/principal before an
individual may be considered an aider and abettor.”

Sowemimo v.

D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 490 (S.D.N.Y. 1999).
Since the NYSHRL claims of discrimination and retaliation are not
viable against Plaintiff’s employer, they are not viable against
the individual defendant.
For the reasons discussed above, Plaintiff has failed to
establish any actionable employer discrimination.
39

There is simply

no employer liability in this case that the individual defendant
Hale could have participated in or aided and abetted.

Therefore,

Defendant Hale is also entitled to summary judgment on Plaintiff’s
NYSHRL claims.
CONCLUSION
For

the

foregoing

summary judgment is GRANTED.

reasons,

Defendants’

motion

The Clerk of the Court is directed

to enter judgment accordingly and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

for

February
25 , 2016
Central Islip, New York

40