Murphy v. New York State Public Employees Federation et al
Filing
42
AMENDED DECISION & ORDER - Defendants' motion for summary judgment, dkt. # 26, is hereby GRANTED in part and DENIED in part. The motion is GRANTED with respect to Plaintiff's claims brought pursuant to the FMLA and his claims for harassme nt under the Americans with Disabilities Act. The motion is also granted with respect to all claims against Defendants Spence and (Tropiano) Seamon as individuals. The Clerk of Court is directed to TERMINATE those two Defendants from the litigation. The motion is DENIED in all other respects. Signed by Senior Judge Thomas J. McAvoy on 9/9/2019. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN MURPHY,
Plaintiff,
v.
1:17-cv-628
(TJM/TWD)
NEW YORK STATE PUBLIC EMPLOYEES
FEDERATION, et al.,
Defendants.
Thomas J. McAvoy, Sr. U.S.D.J.
AMENDED DECISION & ORDER
Before the Court is Defendants’ motion for summary judgment in this case alleging
disability discrimination in employment. See dkt. # 26. The parties have briefed the
issues and the Court will decide them without oral argument.
I.
BACKGROUND1
This case arises out of Plaintiff John Murphy’s employment with Defendant New
York State Public Employees Federation (“PEF”). Plaintiff claims that Defendants
discriminated against him because of his disability and retaliated against him for
complaining about that discrimination. PEF is a union that represents around 54,000
professional, scientific, and technical employees of the State of New York. Defendants’
1
Defendants filed the Statement of Material Facts with citations to the record
required by Local Rule 7.1(3) and Plaintiff filed a response. See L.R. 7.1(3). The Court
will cite to the Defendants’ Statement for facts which are uncontested and note the extent
and source of Plaintiff’s disagreement with those facts.
1
Statement of Material Facts Not in Dispute (“Defendants’ Statement”), dkt. # 26-1, at ¶ 1.
Defendant Wayne Spence has served as PEF’s President since August 1, 2015. Id. at ¶
2. Defendant Christopher Leo began serving as PEF’s Chief of Staff at the time Spence
became President. Id. at ¶ 3. Leo chaired Spence’s transition team . Id. at ¶ 3. Leo had
previously worked as a PEF lobbyist from 2011 to 2014. Id. Defendant Todd Kerner, an
attorney, joined PEF from the New York State Department of Taxation and Finance at the
same time that Leo returned to the Union. Id. at ¶ 4. He prev iously served several terms
on PEF’s Executive Board. Id. Defendant Gregory Amorosi, who previously held political
jobs in the New York State Legislature and worked as an attorney, became Legislative
Director for PEF in late September 2015. Id. at ¶ 6. He was Plaintiff’s direct supervisor
from the time Amorosi joined PEF until December 4, 2015. Id. at ¶ 6. Defendant Jennifer
Seamon has worked for PEF since 2005. Id. at ¶ 7. She becam e Human Resources
Administrator in 2013. Id. Her job is not supervisory and she has no power to terminate
employees. Id. She did not supervise the Plaintiff and was not involved in the decision to
fire him. Id.
Plaintiff began working for PEF in 2005. Id. at ¶ 8. During his employment with the
Union, he held the position of Political Lobbyist/Organizer. Id. at ¶ 9. His job
responsibilities included tracking and monitoring federal legislation applicable to PEF and
its members. Id. at ¶ 10. He served as an at-will employee. Id. at ¶ 11.
On August 2, 2014, Plaintiff was involved in a motor-vehicle accident. Id. at ¶ 20.
Plaintiff and his mother both notified PEF about this accident. Id. at ¶ 21. Plaintif f emailed then-PEF-President Susan Kent and Executive Director Dan Steen to let them
know of the accident. Id. Plaintiff was unable to work, and PEF granted him a leave of
2
absence. Id. at ¶ 22. Plaintiff alleges that the accident caused a traumatic brain injury, as
well as injuries to his back, spine and neck. Id. at ¶¶ 23-24. The accident, Plaintiff
contends, also gave him double and triple vision, which required him to wear special
glasses with prisms to read and write. Id. at ¶ 25.
In August or September 2014, Plaintiff provided PEF with a note from Seton Health,
dated August 4, 2014, stating that Plaintiff “‘is suffering from injuries due to a motor
vehicle accident and is disabled from work.’” Id. at ¶ 26. The note did not describe any
specific injuries. Id. at ¶ 27. Later in August or September 2014, Plaintiff gave PEF
another note from Dr. Charles M. Sulzman of Troy Internal Medicine. Id. at ¶ 28. This
note stated that “‘Mr. Murphy was seen today in medical follow-up of injuries sustained in
[a] recent accident. He remains disabled from work and will be re-evaluated on
September 2nd.’” Id. Sulzman was Plaintiff’s primary doctor. Id. at ¶ 29. The note does
not describe any specific injuries. Id. at ¶ 30. The note became part of Plaintiff’s
personnel file. Id.
Plaintiff sent Susan Kent an email on August 21, 2014 to ask what steps Plaintiff
needed to take to resume his employment. Id. at ¶ 31. Kent forwarded the e-mail to thenExecutive Director Dan Steen. Id. Steen responded that Plaintif f needed only keep the
Union informed of his status. Id. He would also need a note from a doctor releasing him
to work when he was ready to return. Id. Plaintiff was aware leave was available under
the Family and Medical Leave Act (“FMLA”) but did not request any such leave. Id. at ¶
32. PEF permitted Plaintiff to use his accrued paid leave while out with his injuries, and he
was thus paid during that period. Id. at ¶ 33. No one at PEF interf ered with or objected to
Plaintiff’s right to take leave after his injuries. Id. at ¶¶ 34-35.
3
Plaintiff provided PEF with a note from his doctor clearing him to return to work on a
part-time basis on or about September 2, 2014. Id. at ¶ 36. PEF added the note to his
personnel file. Id. Defendant Jennifer Seamon (formerly Jennifer Tropiano) emailed
Plaintiff on September 15, 2014, asking for a medical release from his physician and
requesting that he identify any limitations he faced or reasonable accommodations he
needed when he returned to work. Id. at ¶ 37.
Plaintiff testified that he needed certain accommodations to perform his job when
he returned to PEF on a part-time basis. Id. at ¶ 38. He related that he needed tim e to
walk around the parking lot every few hours for 5-15 minutes during the work day. Id. He
needed to wear special prism glasses to read and write. Id. Defendants contend that no
record exists of Plaintiff “discussing or documenting his need for accommodations” with
PEF. Id. Plaintiff disputes that he failed to inform PEF of his need for accommodations.
See Plaintiff’s Response to Defendants’ Statement of Material Facts (“Plaintiff’s
Response”), dkt. # 33, at ¶ 38. He contends that he inf ormed Seamon of his needs. Id. 2
Plaintiff began attending physical therapy appointments after his accident.
Defendants’ Statement at ¶ 39. Dr. Craig Nelson provided chiropractic physical therapy.
Id. No one at PEF prevented Plaintiff from attending his physical therapy appointments.
Id. at ¶ 40. PEF permitted Plaintiff to work on a reduced schedule after his return. Id. at ¶
41. He began by working one day a week and then added another day at a time until he
2
In a declaration opposing Defendants’ motion, Plaintiff claims that “I informed
Human Resources (Defendant [Seamon]) that I needed to take frequent breaks, that it
would take me longer to finish my work, and that I would need to attend frequent medical
appointments. These accommodations were approved and I continued to work with the
accommodations.” See Plaintiff’s Declaration, dkt. # 30, at ¶ 26.
4
worked five-day weeks. Id. at ¶ 41. Plaintiff agrees that “[n]o one at PEF interfered with,
or otherwise gave Plaintiff a hard time about, working a reduced part-time schedule
following his accident.” Id. at ¶ 42.
Plaintiff did not provide any additional medical documentation after he returned to
work full-time in March 2015. Id. at ¶ 44. At that tim e, he began working full days, from 10
a.m. to 6 p.m., five days a week. Id. at ¶ 45. He continued to take periodic breaks and
wear prism glasses. Id. at ¶ 46. Plaintiff did not request any intermittent leave for a
continuing medical condition after his return. Id. at ¶ 47.
A new administration, headed by Defendant Wayne Spence as Union President,
took over the PEF on August 1, 2015. Id. at ¶ 50. Spence claim s that he “began holding
staff accountable for their job performing [sic] and terminated employees who were not
performing at a satisfactory level.” Id. at ¶ 53. 3 Defendants Leo and Kerner assumed new
roles as well. Id. at ¶ 51. Defendants claim that on Defendant Leo’s first day as Chief of
Staff Plaintiff approached Leo and asked for aid in obtaining a new laptop. Id. at ¶ 52.
Plaintiff had been having trouble obtaining a device, but Defendants assert that Leo
solved this problem within a few days. Id. Plaintiff contends that he had a laptop, which
he used to work outside the office. Plaintiff’s Response at ¶ 52; Plaintiff’s Declaration at ¶
61. Moreover, Plaintiff asserts, the laptop Leo found for him was encrypted, and he could
not use it outside the office. Plaintiff’s Declaration at ¶ 61.
3
Plaintiff disputes this claim, pointing out that “Spence provides no examples of
such employees.” Plaintiff’s Declaration at ¶ 69. “As of the time of my termination,”
Plaintiff claims, “I was not aware of a single employee who was summarily discharged as I
was without any progressive discipline or warnings nor has PEF produced any evidence to
suggest that any other employees were terminated under such circumstances.” Id.
5
The parties agree that Plaintiff had “resolved” many of the physical issues that he
suffered by August of 2015. Defendants’ Statement at ¶ 54; Plaintiff’s Declaration at ¶ 36.
Plaintiff claims, however, that though he was able to work full-time, he “continued to suffer
from cognitive problems with concentration, and other residual issues resulting from the
car accident.” Plaintiff’s Declaration at ¶ 36. He needed to take “f requent breaks” and
needed time “to attend medical appointments[.]” Id. He was still “suffering from [his]
traumatic brain injury and other residual problems with [his] spine, [his] eyes, and [his]
head (frequent headaches).” Id. Plaintiff agrees that in August 2015, “other than
need[ing] periodic breaks and wearing glasses to read and write,” he had “no other
restrictions on his ability to perform his job duties.” Defendants’ Statement at ¶ 55. He
attended physical therapy once a week. Id. at ¶ 56.
Defendants claim that between August 1, 2015 and December 4, 2015, Plaintiff
never discussed his medical condition with anyone at PEF. Id. at ¶ 57. Plaintiff denies
this statement, pointing out that he had informed Defendant Gregory Amorosi about his
need for accommodations. Plaintiff’s Response at ¶ 57. Moreover, he contends, while he
may not have raised his medical condition with Defendant Leo, Leo frequently discussed
“medical issues and disabilities” in his presence. Id. Plaintiff points to the “Charge of
Discrimination” he filed with the Equal Employment Opportunity Commission (“EEOC”) on
April 21, 2016. There, he alleged that in August 2015 Leo began “to make comments to
me about my car accident, suggesting that I was not really hurt.” See Exh. 5 to Plaintiff’s
Declaration, dkt. # 30-5. Leo, Plaintiff claims, stated that he was aware of Plaintiff’s car
accident because “I saw your file and medical stuff and now I have access to all salaries
and all of your e-mails.” Id. Plaintiff further alleges that “Chris Leo repeatedly made
6
comments about my need to attend physical therapy.” Id. He contends that Leo told him
that “I used to make fun of people with disabilities all the time, does that bother you?” Id.
“On other occasions,” Plaintiff claims, “he stared directly at me and stated: ‘I don’t like
handicapped people.’” Id. After Leo moved Plaintiff to another office in September 2015,
he told him that Plaintiff’s new office served “to isolate [him] so ‘[he] would not have
access to the officers who think you are so great and impressed because of your car
accident.’” Id. In phone conversations, Plaintiff alleges, Leo “would scream at me, use
derogatory language such as calling me ‘handicapped’ or ‘disabled,’ or use offensive
language such as calling me ‘retarded.’” Id.
Plaintiff informed Amorosi that he needed to attend physical therapy appointments.
Defendants’ Statement at ¶ 58. Amorosi approved Plaintiff’s attendance at the
appointments. Id. The parties disagree about whether Plaintiff informed Amorosi about
his medical condition and disabilities and whether the physical therapy was an
accommodation to his condition. Defendants’ Statement at ¶ 59; Plaintiff’s Response at ¶
59.
Plaintiff began his career with PEF working in the Union’s Legislative Office on
State Street in Albany, New York. Defendants’ Statement at ¶ 60. At some point, PEF’s
then-legislative director, Pat Lavin, transferred Plaintiff to PEF’s headquarters in Latham,
New York. Id. at ¶ 61. Defendants assert that Lavin had Plaintiff transferred “because he
would not take direction from her.” Id. at ¶ 62. Plaintiff disputes this claim, contending
that his transfer came because he had been assigned additional duties better handled in
Latham, as well as a promotion and a pay increase. Plaintiff’s Response at ¶ 62;
Plaintiff’s Declaration at ¶ 44. His personnel file, he asserts, contains no evidence on the
7
reason for his transfer. Plaintiff’s Declaration at ¶ 44.
In September 2015, the new presidential administration, via Defendant Todd
Kerner, began moving employee’s offices in the Latham headquarters in an attempt to
address space limitations. Defendants’ Statement at ¶ 63. Kerner had hoped to m ove
one employee, Jackie Henderson, to an office near Plaintiff’s in Latham. Id. at ¶ 64.
Kerner discussed the move with Henderson, who told him she preferred to stay in her
current location. Id. at ¶ 65. She explained that she had previously been in a relationship
with Plaintiff and would not feel comfortable working near him; she felt threatened by his
behavior after they broke up. Id. at ¶ 67. Henderson accused Plaintif f of driving up and
down her street and eavesdropping on her conversations. Id. She did not, however, want
to raise a formal complaint about Plaintiff. Id. at ¶ 68. Instead, she hoped to keep her
office where it was. Id. Kerner informed President Spence of these allegations, and
Spence decided the best course of action would be to move Plaintiff’s office back to the
Legislative Staff Office in Albany, where he had previously worked. Id. at ¶¶ 69-70.
Defendants allege a series of problems and deficiencies with Plaintiff’s
performance in the Legislative Office. They contend that he frequently complained to
legislative staff about the administration Spence began to lead in September 2015. Id. at
¶¶ 71-77. Plaintiff allegedly made disparaging comments “on a near daily basis.” Id. at ¶
81. Plaintiff’s complaints to his coworkers eventually made their way to his superiors,
including Leo and Spence. Id. at ¶¶ 84, 86-90. Kerner f ound such comments “particularly
troubling . . . because it was inappropriate for a staff member such as Plaintiff to complain
to elected officials on the Executive Board.” Id. at ¶ 91. Plaintiff denies making
disparaging statements. Plaintiff’s Response at ¶¶ 70-91, 93.
8
Defendants also allege deficiencies in Plaintiff’s work performance from September
2015 until his firing on December 4, 2015. Defendants’ Statement at ¶ 94. Leo and
Kerner complained that Plaintiff did not produce a volume of work suitable for his position.
Id. at ¶¶ 95, 97. Officials also complained about the work hours Plaintiff kept, finding that
he rarely appeared in the office, and that when he appeared he came between 2:30 and
3:30 p.m. and left before 7 p.m. Id. at ¶¶ 99-100. Plaintiff appeared not to follow the
status of the federal legislation his job required him to monitor. Id. at ¶ 101. Plaintiff
denies that he had any issues with his work performance or was difficult to locate during
the work day. Plaintiff’s Response at ¶¶ 94-101.
Eventually, Defendants Leo, Kerner, and Amorosi “decided to hold a counseling
meeting with Plaintiff.” Defendants’ Statement at ¶ 102. They allege that they informed
Spence about their planned meeting, explaining that “there had been issues with Plaintiff
regarding insubordination, failing to follow directions, and issues related to his work
product.” Id. at ¶¶ 103-104. Defendants contend that President Spence him self had
“observed Plaintiff acting in an insubordinate manner.” Id. at ¶ 105. They also allege that
Spence, aware of Plaintiff’s negative comments about his administration and the one that
preceded it, attempted to prevent Plaintiff from attending Executive Board meetings out of
a desire to prevent him from spreading negative messages about the Union’s leadership.
Id. at ¶¶ 106-109. Despite a direction from Leo not to attend Executive Board meetings,
Plaintiff did so anyway. Id. at ¶ 110. Displeased with Plaintiff’s presence at the meeting,
Spence told Leo to “address” Plaintiff’s behavior. Id. at ¶ 111. Spence also knew of
Plaintiff’s allegedly poor performance, Defendants assert. Id. at ¶ 112. Plaintiff denies
that he engaged in any of the alleged conduct and asserts that he stopped attending
9
Executive Board meetings when told not to. Plaintiff’s Response at ¶¶ 104-110.
When told of the proposed counseling session, President Spence allegedly asked
Kerner and Leo “why they were bothering to counsel Plaintiff at all[.]” Id. at ¶ 113. He
instead suggested that the Union terminate Plaintiff’s employment based on his conduct.
Id. Defendants allege that Leo and Kerner instead felt they should continue to work with
Plaintiff. Id. at ¶ 115. They hoped to use the meeting to “counsel” Plaintiff and convince
him to address his behavior; they contend that they never discussed Plaintiff’s need to
attend physical therapy appointments. Id. at ¶¶ 116-118.
The meeting in question took place on December 3, 2015. Id. at ¶ 119. Amorosi
called Plaintiff and directed him to report to the PEF’s Latham headquarters for a meeting.
Id. at ¶ 119. Defendants allege that Amorosi told Leo before the meeting started that he
had asked Plaintiff where he was most of the workweek. Id. at ¶ 120. Defendants claim
that Plaintiff “mentioned that he was attending physical therapy appointments.” Id. The
parties disagree about whether Leo had previously been aware of Plaintiff’s accident or
that he had any type of medical condition. Id. at ¶ 121. Plaintiff disputes that Leo did not
know of his physical difficulties; he alleges that Leo “repeatedly made fun of my vision
problems, made fun of my cane and my difficulty walking, and ability to concentrate.”
Plaintiff’s Declaration at ¶ 28. He also contends that Leo was aware of his traumatic brain
injury, “and called me ‘retarded.’” Id. Such comments, Plaintiff insists, came “throughout
the fall of 2015 well before the December 2015 meeting.” Id. Those comments continued
even after Plaintiff’s transfer to the Legislative Office, since Leo made frequent visits every
week to that facility. Id.
The meeting began at approximately 4:15 p.m. Id. at ¶ 126. Defendant Jennifer
10
(Tropiano) Seamon took notes of the meeting, a practice Defendants claim was common
in such settings. Id. at ¶¶ 122-124. Plaintiff denies that the notes are accurate. Plaintif f’s
Response at ¶ 127. The parties disagree about what Plaintiff had been doing before the
afternoon meeting. Defendants claim that Plaintiff at first claimed he came to the meeting
immediately after he finished his physical therapy, but changed his story after being
confronted with records at his deposition that indicated his appointm ent ended several
hours before the meeting. Id. at ¶ 125. Plaintiff, they allege, “suddenly remembered” that
he had a conference call after his appointment. Id. Plaintiff contends this allegation
misstates his testimony. Plaintiff’s Response at ¶ 125. He contends that he could not
recall what he did during the day, but “I believe I had a conference call or two and I also
recall having an issue with my phone and therefore I had to go to the store to address that
issue.” Plaintiff’s Declaration at ¶ 64. He wore a track suit that day because “I had
attended physical therapy earlier that day and did not change because I was not expecting
to be called into a meeting without notice.” Id.
When Plaintiff arrived at the meeting, he asked “‘what’s this all about, I want to
know what this is about, what’s going on?’” Defendants’ Statement at ¶ 127. Defendants
contend he “repeatedly” asked these questions. Id. The parties disagree about the
subject of the meeting. Defendants claim that Leo “took the lead” and attempted to
address Plaintiff’s “speaking out in ways [he] should not be[,]” asking him about several
comments he allegedly made. Id. at ¶¶ 128-131. Plaintiff contends that “[t]he focus of the
meeting was that Board members had noticed that plaintiff was mistreated, that plaintiff’s
duties had changed, and that Board members were speaking out in support of plaintiff.”
Plaintiff’s Response at ¶¶ 128-131.
11
The parties agree that Leo questioned Plaintiff about the time he spent in physical
therapy. Defendants’ Statement at ¶ 132. Defendants’ claim Leo had only just found out
about his need for physical therapy and that his questions simply amounted to an attempt
“to try and find out how often Plaintiff was attending physical therapy.” Id. at ¶ 133. As
explained above, Plaintiff contends that Leo was well aware of his physical limitations;
Leo’s interest in those appointments, Plaintiff claims, led him to cancel several
appointments. Plaintiff’s Response at ¶ 133; Plaintiff’s Declaration at ¶ 31. Defendants
also contend that Leo was unaware of Plaintiff’s alleged disability at the time he asked his
questions. Defendants’ Statement at ¶ 134. Plaintiff denies this claim, citing in part to the
evidence related above. Plaintiff’s Response at ¶ 134.
Defendants claim that Plaintiff failed to answer questions about his physical
therapy, citing to the notes that Defendant Seamon prepared. Defendants’ Statement at ¶
137. Instead, he claimed that Leo’s questioning amounted to “bullying.” Id. Plaintiff
alleges that Leo made several comments “disparaging” his physical therapy during the
meeting and admits that he described Leo’s conduct as “bullying.” Plaintiff’s Response at
¶ 137. He contends that Leo “question[ed] whether he actually worked or just attended
physical therapy all day.” Id. Plaintiff denies that he refused to answer questions. Id. He
used “that opportunity to lodge a formal complaint of discrimination” and alleges that his
complaint caused Defendant Kerner “to immediately end the meeting.” Id.
At the meeting, Leo and Kerner asked Plaintiff about the negative comments he
had allegedly been making about the new Union administration. Id. at ¶ 138. Plaintiff
contends that Leo and Kerner asked him not about his comments on the Union
leadership, but about “why people were speaking out concerning Chris Leo’s treatment of
12
me.” Plaintiff’s Declaration at ¶ 11. Plaintiff contends that, though “people [were] noticing
and are speaking out,” he had not encouraged them to do so. Id. Defendants allege that
Kerner informed Plaintiff during the meeting that he had been “insubordinate,” and had
spoken negatively about President Spence and Chris Leo to m embers of the executive
board. Defendants’ Statement at ¶ 140. Plaintiff denies that Defendants accused him of
insubordination at the meeting. Plaintiff’s Declaration at ¶ 7. Instead, he contends, the
meeting focused on complaints by board members and other PEF members that his
duties had changed. Id.
Kerner also asked Plaintiff about his complaints that Leo had kept his “hands tied,”
that he “[couldn’t] do anything.” Defendants’ Statement at ¶ 142. Plaintiff does not deny
that he claimed that Leo had tied his hands, but asserts that he m ade that claim in the
context of explaining that Leo had limited his job duties, which “made it difficult for him to
do his job properly.” Plaintiff’s Response at ¶ 143. Defendants contend that Plaintiff
referenced field representatives in complaining about limits to his duties, and that Leo
responded by telling Plaintiff that he did not “have contact with them.” Defendants’
Statement at ¶¶ 143-144. Leo, Defendants claim, then demanded that Plaintiff “describe
your duties here to me . . . other than physical therapy? I am saying this because nobody
has had the guts to confront you prior . . . you can’t take direction.” Id. at ¶ 144. Plaintif f
denies mentioning or hearing comments about field representatives, he admits however,
that “Leo repeatedly asked about what plaintiff did at work except attend physical therapy.”
Plaintiff’s Response at ¶ 144.
Defendants contend that Leo asked his question about Plaintiff’s work habits
“because he had heard that Plaintiff was not in the office and that he wanted to confront
13
Plaintiff about where he was all the time.” Defendants’ Statement at ¶ 145. They contend
that Leo was unaware of Plaintiff’s disability at that point. Id. at ¶ 146. Plaintiff disputes
these statements. Id. at ¶¶ 145-146. He avers that:
During this meeting Chris Leo made several disparaging statements about plaintiff
attending physical therapy visits, and questioning whether he actually worked or just
attended physical therapy all day. Plaintiff explained that it was exactly this type of
conduct that had plaintiff and other PEF members upset. Plaintiff did not refuse to
answer questions, though, he did state that Chris Leo had and continued to bully
and harass him. Plaintiff decided to take that opportunity to lodge a formal
complaint of discrimination, which caused Executive Director, defendant Todd
Kerner, to immediately end the meeting.
Id. at ¶ 145. Leo also questioned Plaintiff about comments to Executive Board members
that Leo was “out to get” Plaintiff, that Leo had limited Plaintiff’s authority, and prevented
him from attending a meeting in Washington, D.C. Defendants’ Statement at ¶ 147. Leo
allegedly informed Plaintiff that “[l]et me tell you, that if you talk negatively, then that is
insubordination . . . insubordination is talking down to anyone higher or above you[.]” Id.
at ¶ 148. Plaintiff points to these sorts of statements as evidence of Leo’s “bullying and
harassment” of him, contending that the only discussions he had with Board members
came because people noticed Defendants’ alleged “mistreatment” of Plaintiff. Plaintiff’s
Declaration at ¶¶ 8, 11.
Defendants claim that Leo informed Plaintiff of problems “regarding his work
product and whether he was providing detailed reports and assessments of his work.”
Defendants’ Statement at ¶ 149. Plaintiff denies that Leo raised these issues at the
meeting. Plaintiff’s Response at ¶ 149. Defendants contend that, while Greg Amorosi had
not asked plaintiff to give detailed reports and assessments, “Chris Leo had expected
Plaintiff to prepare these types of reports because Plaintiff would sit in on federal
14
conference calls and Amorosi was still learning about federal legislation.” Defendants’
Statement at ¶ 150. Plaintiff contends that “[t]here was no discussion during the
December 2015 meeting about detailed reports or lack of communication. In fact, Greg
Amorisi stated that I had provided him with the necessary information on federal issues.”
Plaintiff’s Declaration at ¶ 53.
Defendants contend that, after this discussion, Plaintiff told the meeting that
“Members are mad[.]” Defendants’ Statement at ¶ 151. Kerner allegedly responded to
that statement by exclaiming “What you just said! How would you know? How would you
know that?” Id. Plaintiff denies making this statement. Plaintiff’s Response at ¶ 151. The
parties agree that Leo then informed Plaintiff that he would be required to “document your
work, every minute of [your] day, including physical therapy.” Defendants’ Statement at ¶
152. Defendants contend that Leo made this request “because of the concerns regarding
Plaintiff not being in the office and because Leo wanted to know what he was doing during
the day.” Id. at ¶ 153. Plaintiff contends that this demand represents another example of
Leo’s discrimination towards him because of his disability. Plaintiff’s Response at ¶ 153.
Defendants allege that Kerner then warned Plaintiff that “you could be removed
today, you are ‘at will’ . . . we are all ‘at will employees . . . seriously? I’m shocked at this!
I could get permission to fire you.” Defendants’ Statement at ¶ 154. Plaintiff denies that
Kerner made that statement, and instead contends that Defendants “told [him] repeatedly
he would not be fired.” Plaintiff’s Response at ¶ 154.
As the meeting went on, Defendants allege, they continued to confront Plaintiff
about his supposed criticism of the Union leadership. Defendants’ Statement at ¶¶ 155158. They allegedly presented him with an email from Paula Hennessy, Director of
15
Training and Education, Health and Safety under a previous union president, about
inappropriate “discussion with staff about PEF business.” Id. at ¶ 158. Def endants claim
that Leo told Plaintiff that the email represented concerns about how Plaintiff “act[ed] as
an employee, how [he spoke] with subordinates . . . [and] bosses.” Id. at ¶ 159. Plaintif f
denies that he was accused of insubordination or confronted with inappropriate
statements at this meeting. Plaintiff’s Response at ¶ 155-159. He contends that
Defendants never confronted him with Hennessy’s email. Id. at ¶¶ 158-159.
Defendants claim that Leo then informed Plaintiff that he would not be fired that
day, but that “we are going to re-evaluate you in 30 days, your work ethics [sic], your time
and attendance[.]” Defendants’ Statement at ¶ 160. Leo warned that “in that period if I
hear one, just one staff member, eboard member, regional coordinator, CSEA . . .” Id.
Defendants contend that Plaintiff interrupted at that point, asking “CSEA?” Id. Plaintiff
denies that Leo ever informed him of a 30-day probation or evaluation. Plaintiff’s
Response at ¶ 160. He alleges that “Chris Leo did not state that I would be placed on a
30 day probation or evaluation. I was told I would not be terminated; but that changed
quickly after I lodged a formal complaint of discrimination.” Plaintiff’s Declaration at ¶ 57.
Defendants further allege that about that time in the meeting, PEF Statewide Vice
President Peter Banks walked by the glass room in which the meeting was taking place.
Defendants’ Statement at ¶ 161. Defendants allege Plaintiff looked at Banks and
shrugged his shoulders, “as if to indicate he had no idea why he was there.” Id. Plaintiff’s
alleged shrug angered Kerner: “in complete awe at Plaintiff’s behavior after having just sat
through a counseling session regarding insubordination,” Kerner exclaimed, “There it is!
John! Seriously?” Id. at ¶ 162. Plaintiff describes that event differently. Plaintiff’s
16
Response at ¶ 161. He admits that he saw Banks during the meeting. Id. Plaintiff
“shrugged his shoulders and gestured that he did not know what the meeting was about.”
Id. He claims he “was justifiably nervous and upset about the manner in which he was
being questioned and about how he was treated by Chris Leo[.]” Id. According to Plaintiff,
Leo, not him, had engaged in “inappropriate and offensive behavior[.]” Id. He further
contends that he had not been accused of insubordination during the meeting. Id. at ¶
162.
Defendants contend that Kerner then ended the m eeting with Plaintiff. Defendants’
Statement at ¶ 164. Greg Amorosi considered Plaintiff’s conduct at the meeting “over the
top disrespectful”; he thought Plaintiff’s behavior should lead to his termination. Id. at ¶
165. After the meeting, Kerner, Leo, Amorosi, and Ed Aluck met in Kerner’s office. Id. at
¶ 166. Kerner contended that Plaintiff was not receptive to the counseling he had been
offered in the meeting. Id. Kerner pointed to Plaintiff’s behavior during the meeting and
his interaction with Banks. Id. Kerner argued that Plaintiff was unprofessional and should
be terminated. Id. at ¶ 167. He also did not believe that Plaintiff’s contributions to the
organization were meaningful. Id. at ¶ 168. Defendants allege that Leo likewise
considered Plaintiff’s behavior during the meeting as insubordinate, but did not advocate
his termination. Id. at ¶ 169. Defendants contend that Leo left the meeting and went back
to his office. Id.
Defendants contend that after meeting in Kerner’s office, Kerner and Ed Aluck met
with President Spence and shared their opinions with him. Id. at ¶ 170. Citing to
Spence’s deposition, Plaintiff claims that Leo also attended this meeting. Plaintiff’s
Response at ¶ 169. He quotes Spence to “recall a conversation after the counseling
17
session where Todd Kerner, Chris Leo and Ed Aluck came back to me and said we need
to terminate him. He’s been insubordinate. It didn’t go well.” Id. In any case, Defendants
contend, Spence decided that Plaintiff should be placed on administrative leave and then
terminated. Defendants’ Statement at ¶ 171. Spence relied on the sam e reasons he had
stated before the meeting for desiring Plaintiff’s termination. Id. Defendants insist that
only Spence had the authority make the decision to terminate an employee. Id. at ¶ 172.
Plaintiff contends that the evidence indicates that his termination came at the urging of
Kerner, Leo, and Aluck. Plaintiff’s Response at ¶ 171.
After meeting with Spence, Kerner and Aluck put Plaintiff on administrative leave.
Id. at ¶ 173. Leo was not present when they took this action. Id. at ¶ 174. PEF
terminated Plaintiff on December 4, 2015. Id. at ¶ 175. Leo was not present at that
meeting either. Id. at ¶ 176.
Plaintiff filed a three-count Complaint in the Supreme Court of Saratoga County,
New York on May 15, 2017. See Complaint (“Complt”), dkt. # 1-1. Defendants removed
the case to this Court. See dkt. # 1. Count 1 alleg es disability discrimination in violation of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. Count 2 alleges
disability discrimination in violation of the New York Human Rights Law (“NYHRL”), N.Y.
Exc. Law §§ 290, et seq. Count 3 alleges Defendants interfered with Plaintiff’s leave and
retaliated against him for taking leave under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. §§ 2601, et seq.
The parties engaged in discovery. Defendants filed the instant motion at the close
of the discovery period. The parties then briefed the issues, bringing the case to its
present posture.
18
II.
LEGAL STANDARD
It is well settled that on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the non-moving party, see Tenenbaum v.
Williams, 193 F.3d 581, 593 (2d Cir. 1999), and m ay grant summary judgment only where
"there is no genuine issue as to any material fact and ... the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(a). An issue is genuine if the relevant
evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
A party seeking summary judgment bears the burden of informing the court of the
basis for the motion and of identifying those portions of the record that the moving party
believes demonstrate the absence of a genuine issue of material fact as to a dispositive
issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to
establish a prima facie basis for summary judgment, the burden of production shifts to the
party opposing summary judgment who must produce evidence establishing the existence
of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly
supported motion for summary judgment may not rest upon "mere allegations or denials"
asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d
Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
III.
ANALYSIS
Defendants offer several grounds for summary judgment. The Court will discuss
19
Defendants’ arguments in turn.
A.
ADA/NYHRL
i.
Legal Standard
Plaintiff brings various claims under the Americans with Disabilities Act. He alleges
that he was a victim of employment discrimination because of his disability. The ADA bars
discrimination against a “qualified individual [with a disability] on the basis of disability” in
the “terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). To “establish
a prima facie case of discrimination under the ADA, a plaintiff must show (a) that his
employer is subject to the ADA; (b) that he is disabled within the meaning of the ADA or
perceived to be so by his employer; (c) that he was otherwise qualified to perform the
essential functions of the job with or without reasonable accommodation; and (d) that he
suffered an adverse employment action because his disability.” Brady v. Wal-Mart Stores,
531 F.3d 127, 134 (2d Cir. 2008). “Under the last elem ent, a plaintiff must show that the
adverse employment action ‘took place under circumstances giving rise to an inference of
discrimination.’” Davis v. New York City Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015)
(quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).
Courts analyzing claims of employment discrimination under the ADA follow the
burden-shifting framework set out by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, the “plaintiff must initially come
forward with facts sufficient to establish a prima facie case that his discharge was effected
under circumstances giving rise to an inference of discrimination.” Greenway v. Buffalo
Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). Once plaintif f meets his burden, “the burden
20
of production then shifts to the defendant, who must proffer a legitimate, nondiscriminatory reason for its actions in order to rebut the presumption of unlawful
discrimination” created when plaintiff makes out a prima facie case. Id. If the employer
makes out this burden to “articulate an explanation that, if true, would connote lawful
behavior,” the burden then returns to “the plaintiff to persuade the factfinder that the
employer’s proffered explanation is merely a pretext for unlawful discrimination.” Id.
The same standard applies to disability discrimination claims against an entity
under both the ADA and the NYHRL. See Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d
Cir. 2006) (“In discrimination claims brought under the New York State and New York City
Human Rights Laws, the burden-shifting framework established by the Supreme Court in
McDonnell Douglas . . . applies.”).
ii.
PEF
a.
Discrimination
1.
Prima Facie Case
Defendants first argue that Plaintiff cannot make out a prima facie case for
employment discrimination under the ADA. They insist that Plaintiff cannot demonstrate
that he has a disability. The proof, they contend, does not support a claim that his injuries
from the motor vehicle accident in question substantially limited a major life activity, as
required by the statute.
Under the ADA, a disability is: “(A) a physical or mental impairment that
substantially limits one or more major activities of such individual; (B) a record of such
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. §
21
12102(1)(A-C). Proof of a disability is part of a plaintiff’s prima facie case under the ADA.
Parada v. Banco Indus. de Venez., 753 F.3d 62, 68 (2d Cir. 2014). A disability includes
“‘a physical or mental impairment that substantially limits one or more major life activities
of such individual[.]” Id. (quoting 42 U.S.C. § 121202(1)(A)). “[A]n impairment
‘substantially limits’ a major life activity if the impaired person is ‘[s]ignificantly restricted as
to the condition, manner or duration under which [he] can perform’ the activity.” Id. at 69
(quoting 29 C.F.R. § 1630.2(j)(1)(ii)(1991)). 4
The court’s inquiry into the limitations of a plaintiff’s impairment “reject[s] bright-line
tests and instead emphasize[s] the need for fact-specific inquiry.” Id. A “plaintiff must first
show that [he] suffers from a physical or mental impairment.” Weixel v. Bd. of Educ. of
N.Y., 287 F.3d 138, 147 (2d Cir. 2002). Next, “plaintiff must identify the activity claimed to
be impaired and establish that it constitutes a ‘major life activity.’” Id. “Third, the plaintiff
must show that [his] impairment ‘substantially limits’ the major life activity previously
identified.” Id. This test, however, is not especially onerous. Federal regulations require
that “‘[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive
coverage, to the maximum extent permitted by the terms of the ADA’ and ‘is not meant to
4
For the statute’s purposes, “major life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). The ADA directs courts that
“[t]he definition of disability in this Act shall be construed in favor of broad coverage of
individuals under this Act, to the maximum extent permitted by the terms of this Act.” 42
U.S.C. § 12102(4)(A). “The determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative effects of mitigating
measures such as–“ certain medical devices and medication, including “low-vision devices
(which do not include ordinary eyeglasses or contact lenses[.]” 42 U.S.C. § 12102(4)(E)(I).
“[L]ow vision devices” are “devices that magnify, enhance, or otherwise augment a visual
image.” 42 U.S.C. § 12102(4)(E)(IV)(iii)(II).
22
be a demanding standard.’” Parada, 753 F.3d at 68, n.3 (quoting 29 C.F.R. §
1630.2(i)(1)(i)). As such, “‘[a]n impairment need not prevent, or significantly or severely
restrict, the individual from performing a major life activity in order to be considered
substantially limiting.’” Id. (quoting 29 C.F.R. § 1630.2(i)(1)(ii)).
Defendants argue that Plaintiff was not disabled at the relevant time because he
suffered from a temporary medical condition which was not substantially limiting after he
returned to work. At the time in question, Defendants insist, no evidence indicates that
Plaintiff suffered any substantial limitation to a major life activity. Plaintiff worked a full
schedule at PEF, Defendants point out, as well as part-time work as a toll collector for the
New York State Thruway Authority. The only limitations on his ability to work were a
requirement that he take short breaks throughout the day and that he wear special glasses
to read and write. “In light of the fact that Plaintiff was working two separate jobs, what
appears to be seven days a week, uninhibited by any restrictions,” Defendants argue,
“there can be no legitimate claim that he was limited in his ability to work as compared to
most people in the general population.” Defendants admit that Plaintiff needed special
“prism glasses” to read and write, but argue that his ability to review and synthesize
complicated federal legislation, work collecting tolls, and read and respond to emails
“suggest that his limitation was not substantially limiting.”
Plaintiff contends that his automobile accident caused him lasting injury that
substantially limits major life activities.5 He points out that his accident caused him to miss
a month of work and limited him to part-time employment for an additional six months. He
5
Plaintiff also asserts that Defendants perceived him as disabled, but does not
expand on this argument.
23
suffered a traumatic brain injury, spine injury, vision problems, chronic injuries, and injuries
to his wrist, arms, and legs. He could not walk without a walker or cane, and could see
only with specially ordered prism glasses. Even with his glasses, Plaintiff had vision
limitations, and “his ability to concentrate, think, read, write, and learn were very much
affected.” He had difficulty sleeping and continues to suffer from “chronic spine, vision,
and neurological problems associated with his traumatic brain injury.”
The Court finds that sufficient–if barely sufficient–evidence exists for a jury to
conclude that Plaintiff’s automobile accident led to injuries that, at the time of his
termination, substantially limited him in performing major life activities. First, Plaintiff
points to a number of physical and mental impairments that followed on his accident. 6
Next, Plaintiff testified that he suffers from frequent and chronic pain that limits him in
major life activities. He has trouble concentrating, thinking, writing and learning. Plaintiff
cannot simply sit at a desk and work, but requires frequent movement during the day
because of his intractable pain. He cannot read without special glasses. Plaintiff requires
frequent physical therapy to be able to maintain his ability to work. Taken as a whole and
6
Federal regulations define physical and mental impairments as:
(1) [a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine; or
(2) [a]ny mental or psychological disorder, such as an intellectual disability (formerly
termed “mental retardation”), organic brain syndrome, emotional or mental illness,
and specific learning disabilities.
29 C.F.R. § 1630.2(h). The evidence is sufficient for the Court to conclude that Plaintiff
has met his burden of demonstrating a physiological disorder or condition of the
neurological and muscoloskeletal system.
24
with the understanding that the threshold for disability under the amended ADA is not an
“onerous one,” a reasonable juror could conclude that Plaintif f’s physical condition
substantially limited him in the major life activities of seeing, sleeping, learning, reading,
concentrating, and working.7
Defendants also challenge that portion of Plaintiff’s prima facie case that alleges
that he suffered an adverse employment action. Defendants do not deny that they
terminated his employment, but contend that no evidence supports his claim that the
termination was the product of discrimination because of his disability. The question here
is whether Plaintiff has sufficient evidence to permit a jury to conclude that the
circumstances of his termination permit an “‘inference of discriminatory intent.’” Cortes v.
MTA N.Y. City Transit, 802 F.3d 226, 231 (2d Cir. 2015) (quoting Maraschiello v. City of
Buffalo Police Dept., 709 F.3d 87, 92 (2d Cir. 2013)).
Defendants argue that no evidence indicates that they terminated Plaintiff because
of his disability. To meet this part of the burden-shifting test, the Plaintiff must show that
“[he] suffered [an] adverse employment action because of [his] disability.” Jacques v.
DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004). T o meet this part of his prima facie case,
Plaintiff must show ‘that discrimination was the ‘but-for’ cause of [his] termination.”
Mancini v. Accredo Health Group, No. 3:17-CV-01625-MPS, 2019 U.S. Dist. LEX IS
149981 at *15 (D. Conn. Sept. 4, 2019) (citing Natofsky v. City of New York, 921 F.3d 337,
7
The amendments to the ADA establish that “major life activities no longer need to
be of central importance’” to finding the existence of a disability. Anderson v. Nat’l Grid,
PLC, 93 F.Supp.3d 120, 133 (E.D.N.Y. 2015) (quoting D’Entremont v. Atlas Health Care
Linen Servs., Co., LLC, No. 12-CV00060 (LEK/RFT), 2013 U.S. Dist. LEXIS 34474 at *6
(N.D.N.Y. Mar. 13, 2013)).
25
346 (2d Cir. 2019)). Courts have defined “but-for” causation as evidence that
discrimination “was a ‘but-for’ cause of the adverse action, and not simply a ‘substantial’ or
‘motivating’ factor in the employer’s decision.” Kwan v. Andalex Grp., LLC, 737 F.3d 834,
845 (2d Cir. 2013). At the same time, “‘but-for’ causation does not require proof that
[discrimination] was the only cause of the employer’s action, but only that the adverse
action would not have occurred in the absence of the [discriminatory] motive.” Id. at 846.
Still, “as discrimination will seldom manifest itself overtly, courts must ‘be alert to the
fact that employers are rarely so cooperative as to include a notation in the personnel f ile
that the firing is for a reason expressly forbidden by law.’” Bickerstaff v. Vassar College,
196 F.3d 435, 448 (2d Cir. 1999) (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d
460, 464-65 (2d Cir. 1989)). Courts “must also carefully distinguish between evidence that
allows for a reasonable inference of discrimination and evidence that gives rise to mere
speculation and conjecture.” Id. A court should not eng age in “guesswork or theorization,”
and should recognize that “‘an inference is not a suspicion or a guess. It is a reasoned,
logical decision to conclude that a disputed fact exists on the basis of another fact [that is
known to exist].’” Id. (quoting 1 Leonard B. Sand, et al, M ODERN FEDERAL JURY
INSTRUCTIONS, P 6.01, instr. 6-1 (1997)). “Thus, the question is whether the evidence can
reasonably and logically give rise to an inference of discrimination under all the
circumstances.” Id.
The Court finds that the evidence in this case is sufficient to draw an inference of
discrimination from the Defendants’ conduct. As explained above, Plaintiff alleges
frequent comments from Leo about his absences from work, comments by Leo that he did
not like people with disabilities, and references by Leo about his need for physical therapy
26
during the “counseling session” that immediately preceded his termination. He also
contends that he never faced complaints about his work before that session, and that Leo
had made other comments concerning his physical condition in the time leading up to the
session. While the parties dispute Leo’s role in Plaintiff’s termination, a reasonable juror
could find he played an important role in that decision. Under those circumstances, a
reasonable juror could find an inference of discrimination in the circumstances of Plaintiff’s
termination. That juror could conclude that Leo’s criticism of Plaintiff always came in the
context of Plaintiff’s disability, and therefore find Plaintiff’s disability the “but-for” cause of
termination. The Court therefore finds that Plaintiff has met his burden of making out a
prima facie case of employment discrimination based on his disability.
2.
Burden Shifting8
Since Plaintiff has made out his prima facie case, the question is whether
Defendants have provided sufficient evidence to meet their burden of providing a
legitimate, non-discriminatory reason for Plaintiff’s termination. See Greenway, 143 F.3d
at 52. The Court finds that they have. The evidence related above indicates that
Plaintiff’s supervisors found his attendance unreliable and his perf ormance lacking.
Plaintiff was not in the office when he should have been, did not complete tasks as
assigned, did not respond to direction from supervisors, and did not perform lobbying in
the volume or in the manner his employers required. Supervisors also found that Plaintiff
had disparaged the Union’s new leadership and attempted to undermine that leadership’s
authority. Firing an employee for insubordination and performance issues represents a
8
Neither side offers argument concerning these issues. Since the legal standard
here requires applying the McDonnell-Douglas test, the Court will do so.
27
legitimate non-discriminatory reason for Defendants’ employment decision, and the Court
finds that Defendants have advanced such a reason for their employment decision.
Plaintiff does not dispute that Defendants have met their burden in this respect.
The burden now shifts to the Plaintiff to point to evidence a jury could use to
conclude that the stated reasons for the employment decision were not the real ones, but
were instead pretext for Defendants’ real, discriminatory, motive. Id. Plaintiff argues that
his prima facie case of discrimination supports his claim in this respect as well. The
evidence cited above indicates that Defendants, particularly Leo, had complaints about
Plaintiff’s need for physical therapy and that Leo expressed disdain for people with
“handicaps.” A reasonable juror could examine such evidence, weigh the fact that Plaintiff
had not faced discipline for his conduct before the “counseling session,” and conclude that
the stated reasons for Plaintiff’s termination were not the real reasons. That juror could
find that Defendants Plaintiff’s disability was a but-for cause of his termination. The Court
will therefore deny the Defendants’ motion in this respect.
b.
Harassment
Plaintiff next alleges that he was the victim of harassment because of his disability.
The Second Circuit has recently concluded “claims for hostile work environment are
actionable under the ADA.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir.
2019). “‘Because the ADA echoes and expressly refers to Title VII, and because the two
statutes have the same purpose–the prohibition of illegal discrimination in employment–‘ it
follows that disabled Americans should be able to assert hostile work environment claims
under ADA, as can those protecte by Title VII under that statute[.]” Id. (quoting Fox v. Gen.
28
Motors Corp., 247 F.3d 169, 176 (4 th Cir. 2001)).
“Harassment is actionable when it creates a hostile work environment which is ‘so
severely permeated with discriminatory intimidation, ridicule, and insult that the terms and
conditions of [plaintiff’s] employment where thereby altered.’” Farina v. Branford Bd. of
Educ., 458 Fed. Appx. 13, 17 (2d Cir. 2011) (quoting Alfano v. Costello, 294 F.3d 365, 373
(2d Cir. 2002)). “A plaintiff must show not only that [he] subjectively perceived the
environment to be abusive, but also that the environment was objectively hostile and
abusive.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010). In
deciding whether evidence supporting a hostile work environment claim exists, the court
must “look to the record as a whole and assess the totality of the circumstances,
considering a variety of factors including ‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance[.]’” Id.
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (internal citations om itted)).
“For conduct to be frequent, ‘[a]s a general rule, incidents must be more than episodic;
they must be sufficiently continuous and concerted in order to be deem ed pervasive.’”
Marino v. EGS Elec. Group, LLC, No. 12cv518(JBA), 2014 U.S. Dist. LEXIS 43131 at *18
(Dist. Conn. Mar. 31, 2014) (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)
(internal citations omitted)). “‘Conduct that is merely offensive, unprofessional, or childish
cannot support a hostile work environment claim. Nor can offhand comments, isolated
incidents, stray remarks, or [the plaintiff’s] subject belief constitute a viable claim.’” Cadet
v. Deutsche Bank Secs., Inc., No. 11 Civ. 7964 (CM), 2013 U.S. Dist. LEXIS 87328 at *24
(S.D.N.Y. June 18, 2013) (quoting Payton v. City Univ. of New York, 453 F.Supp.2d 775,
29
785 (S.D.N.Y. 2006)).
As explained above, Plaintiff argues that evidence of harassment includes
statements by Leo, changes in job duties, and other “derogatory statements” about him.
He contends that these statements came while both he and Leo worked in the same
building and after his transfer. Plaintiff admits he would see Leo less frequently after that
transfer. After considering the evidence summarized above, the Court finds that no
reasonable juror could find that Leo’s comments were continuous and concerted, and thus
pervasive. Though a juror could find Leo’s comments unprofessional and demeaning, no
evidence indicates that they were continual, that Plaintiff endured them regularly, or that
they changed the terms and conditions of his employment. Even if a juror found that Leo
made every comment Plaintiff describes, a juror would still have to find that such
comments were merely episodic. The Court will therefore grant the motion in this respect
and dismiss Plaintiff’s harassment claim.
c.
Retaliation
The ADA also prohibits an employer from “discriminat[ing] against any individual”
who “has opposed any act or practice made unlawful by [the ADA] or because such
individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under the statute. 42 U.S.C. § 12203(a). “‘Claims
for retaliation [under the ADA] are analyzed under the same burden-shifting framework
established for Title VII cases.’” Widomski v. State Univ. of N.Y., 748 F.3d 471, 476 (2d
Cir. 2014) (quoting Tregila v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)). A prima
facie case for retaliation under the ADA requires a showing that “‘(1) the employee was
30
engaged in activity protected by the ADA, (2) the employer was aware of the activity, (3)
an employment action adverse to the plaintiff occurred, and (4) there existed a causal
connection between the protected activity and the adverse employment action.’” Muller v.
Costello, 187 F.3d 298, 311 (2d Cir. 1999) (quoting Sarno v. Douglas Elliman-Gibbons &
Ives, Inc., 183 F.3d 155, 1999 U.S. App. LEXIS 15150 at *3 (2d Cir. 1999)). Courts apply
the same standard to evaluate rehabilitation claims under the ADA and the NYHRL.
Treglia, 313 F.3d at 719.
Defendants contend that Plaintiff cannot make out a prima facie case. Defendants
first argue that no evidence exists to support Plaintiff’s claim that he complained about
harassment on the basis of disability at the December 3 counseling meeting. Plaintiff
responds that he twice complained about discrimination, once to Greg Amorosi a few
weeks before the December 3, 2015 meeting and then during the meeting. A plaintiff can
protest discriminatory treatment in a number of “informal ways” beyond filing a formal
complaint, such as “making complaints to management, writing critical letters to
customers, protesting against discrimination by industry or society in general, and
expressing support of co-workers who have filed formal charges.” Sumner v. U.S. Postal
Service, 899 F.2d 203, 209 (2d Cir. 1990). Plaintif f insists that he complained about
discrimination by Leo. Though defendants dispute the existence of these claims,
particularly at the December 3 meeting, Plaintiff has raised a question of fact as to
whether he engaged in a protected activity. The Court will deny the motion on those
grounds.
Defendants also insist that Plaintiff cannot make out the second element of his
prima facie case because the ultimate decision maker, Spence, was not aware of his
31
complaints. Courts have held that “to satisfy the knowledge requirement,” nothing “more is
necessary than general corporate knowledge that the plaintiff has engaged in protected
activity.” Gordon v. New York City Board of Educ., 232 F.3d 111, 116 (2d Cir. 2000); see
also, Kwan v. Andalex Grp., LLC, 737 F.3d 834, 844 (2d Cir. 2013) (without the corporate
knowledge rule “a simple denial by a corporate officer that the officer ever communicated
the plaintiff’s complaint, no matter how reasonable the inference of communication, would
prevent the plaintiff from satisfying her prima facie case, despite the fact that the prima
case requires only a de minimis showing.”). The facts related above indicate that at least
Defendants Kerner and Aluck met with Spence following the meeting in which Plaintiff
allegedly raised disability discrimination and recommended that Spence fire Plaintiff. Such
conduct could be viewed by a reasonable juror as evidence that persons involved in the
crucial meeting where Plaintiff raised disability discrimination, and that the two (at least)
then almost immediately recommended Plaintiff’s firing. A reasonable juror could view this
as evidence that the decision-makers were aware of Plaintiff’s complaints.
Defendants also in this respect contend that Plaintif f cannot establish the causation
element of his prima facie case. A plaintiff can demonstrate a causal connection either
“‘(1) indirectly, by showing that the protected activity was followed closely by discriminatory
treatment, or through other circumstantial evidence such as disparate treatment of fellow
employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory
animus directed against the plaintiff by the defendant.’” Littlejohn v. City of New York, 795
F.3d 289, 319 (2d Cir. 2015) (quoting Gordon, 232 F.3d at 117). Here, Plaintiff points to
temporal proximity. In such cases, “”the causal connection . . . ‘can be established
indirectly by showing that the protected activity was closely followed in time by the adverse
32
action[.]’” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (quoting
Mancharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d
Cir. 1988) (finding that a gap between plaintiff’s initial complaint and discharge was
sufficient to demonstrate a causal connection); see also, Gorman-Bakos v. Cornell Coop.
Extension, 252 F.3d 545, 554 (2d Cir. 2001) (“In this Circuit, a plaintif f can indirectly
establish a causal connect to support a discrimination or retaliation claim” by showing
close temporal proximity.”). Here, using the facts explained above, a reasonable juror
could believe that Plaintiff alleged discrimination on the basis of his disability during the
December 3 meeting. His firing came the next day. He claims to have heard repeated
complaints about his disability and his efforts to obtain accommodation for it. A
reasonable juror could use that conduct and that close tem poral proximity to conclude that
Plaintiff’s alleged complaint caused his firing. Sufficient evidence supports that element of
Plaintiff’s prima facie retaliation case. See Littlejohn, 795 F.3d at 320 (“alleg ations that
[plaintiff’s] demotion occurred within days after her complaints of discrimination” were
sufficient at the pleading stage).9
9
Defendants also insist that Plaintiff must show that “but for” his protected activity,
he would not have been terminated. “[T]here is an unsettled question of law in this Circuit
as to whether a plaintiff must show, in order to succeed on [his] ADA retaliation claim, that
the retaliation was a ‘but for’ cause of the adverse employment action or merely a
motivating factor.’” Flieger v. E. Suffolk BOCES, 693 F.App’x 14, 18 (2d Cir. 2017) (citing
Eisner v. Cardozo, 685 F.App’x 29, 30 (2d Cir. 2017)). Even applying that “but-for” test,
however, “does not require proof that retaliation was the only cause of the employer’s
action, but only that the adverse action would not have occurred in the absence of the
retaliatory motive’, nor does the but-for standard ‘alter the plaintiff’s ability to demonstrate
causation . . . through temporal proximity.’” Genco v. Starpoint Cent. Sch. Dist. Bd. of
Educ., No. 17cv1168, 2018 WL 3827740, at *7, n.7 (W .D.N.Y. June 4, 2018). Under
these circumstances, the close temporal proximity of the complaint and Plaintiff’s
termination passes the but-for test.
33
Defendants further argue that no evidence demonstrates that Spence, who fired
Plaintiff, had any knowledge of the Plaintiff’s protected activity. Without such knowledge,
Defendants insist, Plaintiff cannot demonstrate that Plaintiff’s firing came because of his
protected activity. Plaintiff relies on a “cat’s paw” theory to meet his burden here. As the
Second Circuit Court of Appeals has explained:
The phrase derives from an Aesop fable, later put into verse by Jean de la
Fontaine, in which a wily monkey flatters a native cat into pulling roasting chestnuts
out of a roaring fire for their mutual satisfaction; the monkey, however, “devour[s] . .
. them fast,” leaving the cat “with a burnt paw and no chestnuts” for its trouble.
“[I]njected into United States employment discrimination law by [Judge Richard]
Posner in 1990,” Straub v. Proctor Hosp., 562 U.S. 411, 415 n.1, 131 S. Ct. 1186,
179 L. Ed. 2d 144 (2011), the “cat’s paw” metaphor now “refers to a situation in
which an employee is fired or subjected to some other adverse employment action
by a supervisor who himself has no discriminatory motive, but who has been
manipulated by a subordinate who does have such a motive and intended to bring
about the adverse employment action,” Cook v. IPC Intern. Corp., 673 F.3d 625,
628 (7th Cir. 2012) (Posner, J.). Because the supervisor, acting as an agent of the
employer, has permitted himself to be used “as the conduit of [the subordinate’s]
prejudice,” Shager v. Upjohn Co., 913 F.2d 398, 405 (7 th Cir. 2011), that prejudice
may then be imputed to the employer and used to hold the employer liable for
employment discrimination. In other words, by merely effectuating or “rubber
stamp[ing]” a discriminatory employee’s “unlawful design,” Nagle v. Marron, 663
F.3d 100, 117 (2d Cir. 2011), the employer plays the credulous cat to the
malevolent monkey and, in so doing, allows itself to get burned–i.e., successfully
sued.
Vasquez v. Empress Ambulance Serv., 835 F.3d 267, 272 (2d Cir. 2016). The Second
Circuit has approved the use of the “cat’s paw” theory in Title VII retaliation cases. Id. at
273. The “cat’s paw” theory has also been applied in ADA retaliation cases. See
Saviano v. Town of Westport, No. 3:04-CV-522 (RNC), 2011 U.S. Dist. LEXIS 11 at *2325 (Dist. Con. Sept. 30, 2011). Under these circumstances, where Spence’s firing of
Plaintiff came shortly after he raised a complaint about disability discrimination and where
a juror could find that the facts indicate that Plaintiff faced a discriminatory animus from
34
those who recommended his firing, even assuming Spence accepted the allegedly
manufactured reasons for Plaintiff’s termination without knowledge of the protected activity
is not fatal to Plaintiff’s claim.
Assuming that a but-for theory of causation applies, the Court finds that the
evidence is sufficient for a reasonable juror to conclude that Plaintiff’s disability was the
“but-for” cause of his termination, and Plaintiff has satisfied his burden. As further
explained above, the application of the McDonnell-Douglas burden shifting test to this
case creates a question of fact for the jury. Defendants’ motion will be denied in this
respect as well.
iii.
Individual Defendants10
Defendants also seek dismissal of any claims against the individual Defendants
under the NYHRL. That statute prohibits “an employer” from discriminating on the basis of
“age, race, creed, color, national origin, sexual orientation, military status, sex, disability,
predisposing genetic characteristics, familial status, marital status, or domestic violence
victim status[.]” N.Y. Exec. L. § 296(1)(a). Courts have concluded that “[a] supervisor is an
‘employer’ for purposes of establishing liability under the NYHRL if that supervisor ‘actually
participates in the conduct giving rise to [the] discrimination.” Feingold v. New York, 366
F.3d 138, 157 (2d Cir. 2004). As such, “[i]ndividual liability . . . may lie under the New York
Human Rights Law where . . . the individual participates in the conduct giving rise to the
10
The individual defendants cannot be liable under the ADA f or disability
discrimination. See, e.g., Corr v. MTA Long Island Bus, No. 98-9417, 1999 US App.
LEXIS 25058, at * 5 (2d Cir. Oct. 7, 1999) (“[T]here is no right to recovery against
individual defendants under the ADA.”). They also cannot be liable individually for
retaliation. See Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010).
35
discrimination claim.” Kercado-Clymer v. City of Amsterdam, 2010 U.S. App. LEXIS 6129,
108 Fair Empl. Prac. Cas. 1785, at *5 n.1 (2d Cir. Mar. 25, 2010). The NYHRL also
provides 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.” NY Exec. L. § 296(6). Under this provision, “a co–worker who ‘actually
participates in the conduct giving rise to a discrimination claim’” can “be held liable under
the NYHRL even though that co-worker lacked the authority to hire or fire the plaintiff.”
Feingold, 336 F.3d at 157-58 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.
1995)).11 To be liable, “‘the aider and abettor [must] share the intent or purpose of the
principal actor.’” Griffin v. Sirva Inc., 835 F.3d 283, 293 (2d Cir. 2016) (quoting Idlisan v.
NYS Dep’t of Taxation & Fin., No. 12cv1787, 2013 U.S. Dist. LEXIS 83131, 2013 WL
2898050, at *4-5 (N.D.N.Y. June 13, 2013) (internal quotations omitted)).
The Court will examine the role of each of the individual defendants in the alleged
discrimination in turn.
i.
11
Christopher Leo
In Feingold, the court found that plaintiff had:
presented sufficient evidence to create a triable question as to whether each of the
named individual defendants ‘actually participate[d]’ in the conduct giving rise to
Feingold’s claim of unlawful discrimination in violation of the NYSHRL. Feingold
has proffered enough evidence to permit the conclusions (a) that Lee-Sang, Tapia,
and Waltrous all participated in creating a hostile work environment, (b) that
Waltrous and Isaacs assigned him a disproportionate workload because of his
race, and (c) that Sullivan and Schugasser not only took no action to remedy such
behavior although they were aware of it, but also terminated Feingold’s employment
on the basis of impermissible factors.
Feingold, 366 F.3d at 158.
36
Defendants assert that no evidence indicates that Leo played a role in Plaintiff’s
termination, and that the claims against him must therefore be dismissed. Plaintiff
contends that Leo is liable because of his allegedly harassing and disriminatory behavior,
and because he made the recommendation to Spence that Plaintiff be terminated.
The Court finds that a reasonable juror could use the conduct recited abov e to find
Defendant Leo liable on an aiding and abetting theory. A juror could find that Leo held a
discriminatory animus towards Plaintiff because of his disability based on his alleged
comments to Plaintiff doubting his injuries, his alleged animus towards people with
disabilities, and his supposed desire to isolate Plaintif f from co-workers who were more
supportive of his situation. A reasonable juror could use this evidence to conclude that
Leo’s complaints about Plaintiff’s performance to Spence came not because of Plaintiff’s
actual performance, but because of Leo’s animus to Plaintiff because of his disability. The
parties dispute whether Leo encouraged Spence to terminate him, and whether Leo was
at the meeting where Spence came to that conclusion. The parties agree, however, that
Leo was involved in discussions with Kerner, Amorosi, and Ed Aluck about how to handle
Plaintiff’s alleged insubordination and poor performance. In the context of Leo’s alleged
animus towards Plaintiff because of his disability, a reasonable juror could draw an
inference that Leo used this situation to act on that anim us. If a juror drew such an
inference, that juror could find Leo liable for aiding and abetting discrimination. See, e.g.,
Malena v. Victoria’s Secret Direct, LLC, 886 F.Supp.2d 349, 366-67 (S.D.N.Y . 2012)
(denying summary judgment on NYSHRL claim against an individual defendant when “the
corporate Defendants, knowingly or not, may have terminated Plaintiff because of
discriminatory or retaliatory intent attributable to” the individual defendant) (emphasis in
37
original)). Leo was also present when Plaintiff allegedly complained of discrimination.
The temporal proximity between that complaint, combined with Leo’s alleged animus
towards Plaintiff because of his disability, is also sufficient for a reasonable juror to find
Leo liable for aiding and abetting retaliation. The Court will therefore deny Defendants’
motion in this respect.
ii.
Wayne Spence
Plaintiff asserts that Defendant Spence is liable under this theory because he made
the decision to terminate Plaintiff, following the recommendation of Leo and Kerner. The
parties agree that Spence had responsibility to hire and fire employees at the union. He
could be liable if he were to “‘actually [participate] in the conduct giving rise to [the]
discrimination.” Feingold, 366 F.3d at 157. Plaintiff does not point to any evidence,
however, indicating that Spence knew of Plaintiff’s disability or acted because of
knowledge of that disability. The evidence related above indicates that Spence raised
concerns about Plaintiff’s alleged insubordination to the leadership of the PEF. While
evidence indicates that those who urged Plaintiff’s firing on Spence may have had an
animus to Plaintiff and acted together to terminate his employment, Plaintiff fails to point to
any evidence that Spence shared in this animus or knew it. A reasonable juror could only
conclude that Spence fired Plaintiff because of his supposedly deficient performance.
Though the union can be liable under the NYHRL and the ADA, Spence may avoid
individual liability under New York law. The Court will grant the motion in this respect.
iii.
Todd Kerner
Defendants seek judgment on Plaintiff’s claims against Defendant Todd Kerner.
38
They contend that no evidence exists of any animus by Kerner towards the Plaintiff
because of his disability, and no evidence that he acted on such animus. Plaintiff argues
that Kerner is liable because he recommended to Spence that Plaintiff be terminated.
The evidence related above indicates that Kerner recommended to Spence that the
union terminate Plaintiff’s employment. That evidence also indicates that Kerner’s
recommendation came because of Plaintiff’s conduct and his supposed insubordination.
Nothing indicates that Kerner had any concern about, knowledge of, or animus towards
Plaintiff because of his condition in the time leading up to the December 3 meeting. At the
same time, however, it is undisputed that Kerner heard Plaintiff complain about
discrimination because of his disability at that meeting. He terminated the counseling
meeting and shortly thereafter recommended to Spence that the union fire Plaintiff. As
explained above, the close temporal proximity between Plaintiff’s complaint and Kerner’s
recommendation to Spence could be used by a reasonable juror to find that Kerner’s firing
recommendation was motivated by Plaintiff’s complaints about discrimination. The Court
must therefore deny the motion in this respect as well.
iv.
Jennifer (Tropiano) Seamon
Defendants seek dismissal of any claims against Defendant Jennifer (Tropiano)
Seamon. They argue that she was not involved in any decisions about Plaintiff’s
employment and that she lacked the authority to terminate anyone. As with the other
Defendants, Plaintiff contends that a reasonable juror could find Seamon liable as an aider
and abettor. He argues that, like Amorosi, Seamon is liable because she was “aware of
plaintiff’s complaints of discrimination but failed to take action to stop the behavior.”
39
The Court finds that no evidence exists by which a reasonable juror could conclude
that Defendant Seamon is liable under an aided and abetted theory. First, no evidence
indicates that Seamon made any decisions about Plaintiff’s employment or had any
control over the conditions of his employment. Defendants’ statement of material facts
asserts that “Seamon did not supervise Plaintiff and was not involved in the decision to
terminate his employment at PEF.” Defendants’ Statement at ¶ 7. Plaintiff does not
dispute this claim. See Plaintiff’s Response at ¶ 7. The facts related above indicate that
Seamon played no role in Plaintiff’s termination. She took notes during the meeting that
led to his firing, but she did not make any recommendations to Spence, and no evidence
indicates that the notes she took played any role in the adverse employment action
Plaintiff suffered. The Court will therefore grant the motion with respect to Defendant
Seamon. She will be dismissed from the case.
v.
Gregory Amorosi
Defendants likewise seek to dismiss any claims against Defendant Amorosi. They
contend that he was not involved in the decision to terminate Plaintiff and cannot be held
liable for that action. Plaintiff contends that Amorosi could be liable under an aiding and
abetting theory.
As explained above, the parties disagree about Amorosi’s knowledge of Plaintiff’s
disability. Plaintiff insists, however, that he told Amorosi about his injuries and the
limitations and needs they caused. A question of fact therefore exists for a jury to decide
on that issue. The parties do not dispute that Amorosi attended the counseling meeting
that forms the center of this dispute, or that he met with Kerner, Leo, and Ed Aluck after
that meeting to discuss how to respond to Plaintiff’s conduct. The parties also do not
40
dispute that Amorosi was not present at the meeting where officials recommended to
Spence that Plaintiff be fired.
Given those facts, the Court finds that a reasonable juror could conclude that
Amorosi aided and abetted discrimination and retaliation because of Plaintiff’s disability. A
reasonable juror could infer that the meeting that Kerner, Leo, Amorosi, and Aluck
consisted of a decision to recommend that Plaintiff be fired because of his disability. That
juror could find that the circumstances indicate that the Defendants agreed to recommend
Plaintiff’s firing not because of his conduct, but because of his disability and his complaints
about discrimination because of that disability. Under those circumstances, a question of
fact exists as to whether Amorosi aided and abetted violations of the NYSHRL. The
motion will be denied in this respect as well.
B.
FMLA
Defendants next claim that Plaintiff cannot maintain any interference or retaliation
claim under the FMLA because no evidence exists that he ever used FMLA leave. To
sustain an interference claim under the FMLA, a plaintiff must show “1) that [he] is an
eligible employee under the FMLA; 2) that the defendant is an employer as defined by the
FMLA; 3) that [he] was entitled to take leave under the FMLA; 4) that [he] gave notice to
the defendant of [his] intention to take leave; and 5) that [he] was denied benefits to which
[he] was entitled under the FMLA.” Graziado v. Culinary Inst. of America, 817 F.3d 415,
424 (2d Cir. 2016). To establish an FMLA retaliation claim, Plaintiff must show “‘that 1) he
exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he
suffered an adverse employment action; and 4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory intent.’” Id. at 249 (quoting
41
Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012)).
Plaintiff did not respond to Defendants’ motion in this respect. He could not prevail
even if he had. Under either an interference or a retaliation theory under the FMLA, a
Plaintiff must show at least an attempt to exercise a right available under the FLSA. No
evidence here indicates that Plaintiff ever tried to use such leave. He therefore cannot
prevail on this claim, and the Court will grant the motion in this respect.
IV.
CONCLUSION
For the reasons stated above, the Defendants’ motion for summary judgment, dkt.
# 26, is hereby GRANTED in part and DENIED in part. The motion is GRANTED with
respect to Plaintiff’s claims brought pursuant to the FMLA and his claims for harassment
under the Americans with Disabilities Act. The motion is also granted with respect to all
claims against Defendants Spence and (Tropiano) Seamon as individuals. The Clerk of
Court is directed to TERMINATE those two Defendants from the litigation. The motion is
DENIED in all other respects.
IT IS SO ORDERED
Dated: September 9, 2019
42
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?