Alston v. Microsoft Corporation et al

Filing 90

OPINION AND ORDER: re: 65 MOTION for Summary Judgment. filed by Microsoft Corporation, 77 MOTION for Summary Judgment. filed by Alson Alston. Plaintiff has failed as a matter of law to demonstrate that he would be entitled to prevail on his wrong ful termination claims. To the contrary, he has failed to present evidence of any genuine dispute of material fact that could allow a reasonable fact finder to find in his favor. Accordingly, this Court denies plaintiffs motion for summary judgment and grants defendant's motion for summary judgment. (Signed by Judge Sidney H. Stein on 3/27/2012) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ALSON ALSTON,
Plaintiff,

-againstMICROSOFT CORP.,
Defendant.

08 Civ. 3547 (SHS)
OPINION AND ORDER

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SIDNEY H. STEIN, U.S. District Judge.
Pro se plaintiff Alson Alston brought this action against Microsoft Corporation and ten
individual Microsoft employees. Plaintiff alleges that Microsoft wrongfully terminated his
employment due to his race and his disability in violation of the Americans with Disabilities Act
(“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). The parties have now filed
extensive submissions on cross motions for summary judgment on the wrongful termination ADA
and Title VII claims.1 Because Alston has failed to present evidence of any genuine dispute of
material fact that could allow a reasonable factfinder to find in his favor, his motion for summary
judgment is denied and Microsoft’s motion is granted.

1

Plaintiff also originally alleged claims pursuant to the New York City and New York State Human Rights Laws, as
well as various ADA and Title VII claims, but in 2009, Judge Denny Chin, to whom this action was then assigned,
dismissed each of those claims except for the wrongful termination claims against Microsoft Corporation. See
Alston v. Microsoft, No. 08 Civ. 3547, 2009 U.S. Dist. LEXIS 39662 (S.D.N.Y. April 27, 2009). Specifically, Judge
Chin dismissed the New York City and State Human Rights law claims for lack of subject matter jurisdiction, id. at
*14, determined that “all of the alleged discrete acts except for Alston's discharge are time-barred,” id. at *17, and
dismissed the Title VII and ADA claims against the individual defendants because individuals are not subject to
liability under Title VII or the ADA, id. at *19 n.2.

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I.

BACKGROUND
A.

Plaintiff’s Employment at Microsoft from 1995 to April 2003

Plaintiff, who is African-American (Ex. C to Decl. of Rosemary Alito dated August 18,
2011 (“Alito Decl.”) at 4), began his employment with Microsoft in 1995 as a Senior Applications
Developer in its Issaquah, Washington office. (Def.’s Local Civil Rule 56.1 Statement of
Undisputed Facts (“Def.’s 56.1”) ¶ 1); (Pl.’s Local Civil Rule 56.1 Statement of Undisputed Facts
(“Pl.’s 56.1”) ¶ 1.) Plaintiff remained in Issaquah for two years before transferring to Microsoft’s
Consulting Services practice in Washington, D.C. to work as a Senior Consultant. (Deposition of
Alson Alston dated August 13, 2009 at 41:10-41:14 (“Alston Dep.”), Ex. A to Alito Decl.) He
started as a “Senior Consultant I” and was later promoted to “Senior Consultant II.” (Ex. A to
Alito Decl. at 42:1-42:7.) In August of 1999, plaintiff transferred to Microsoft’s Financial
Services Practice in New York City. (Def.’s 56.1 ¶ 3; Pl.’s 56.1 ¶ 3.) The parties dispute whether
plaintiff’s position in New York was at the Senior Consultant I or Senior Consultant II level.
(Def.’s 56.1 ¶ 3; Pl.’s 56.1 ¶ 3.)
B.

Plaintiff’s Extended Leave of Absence from April to September 2003

Alston claims that, in 2003, while still employed in the Financial Services Practice, he
became ill while on an assignment in Miami. (Compl., Ex. C to Alito Decl. Part II.E ¶¶ (f), (g);
Def.’s 56.1 ¶ 4; Pl.’s 56.1 ¶ 4.)2 On April 15, 2003, plaintiff sought and received approval for a
five-week leave of absence. (Ex. J to Alito Decl. D000000199-200.) Plaintiff subsequently
requested and received approval for five separate extensions of that leave, resulting in a paid leave
of absence of five months between April and September 2003. (Id. at D000000201-13.) In each
2

Plaintiff states in his Local Rule 56.1 Statement that he “partly affirm[s], partly den[ies]” Microsoft’s statement in
paragraph 4 of its Local Rule 56.1 Statement. (Pl.’s 56.1 ¶ 4.) Although he states that Microsoft’s assertions are
“false and misleading,” and provides a detailed account of the trip to Miami, he does not dispute the essential facts
of Microsoft’s statement. (See Pl.’s 56.1 ¶ 4.)

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of plaintiff’s leave requests, on a Microsoft “Statement of Impairment” form, plaintiff’s physician,
Dr. Ronald Davidson, wrote that plaintiff exhibited “[s]ymptomatology related to poorly controlled
Hypertension and diabetes” including “In ability to focus, to reduced ability concentration,
Headaches, discomfort, shortness of breathe [sic] upon exertion,” which “impact[ed]” his “ability
to work.” (Id. at D000000199, D000000201, D000000204, D000000206, D000000208,
D000000212.) His doctor set forth in his last “Statement of Impairment” form dated August 1,
that his estimate of when Alston “will be able to resume employment” was August 30, 2003. (Id.
at D000000212.)
Three weeks later, Microsoft wrote Alston that it anticipated that he would return to work
on September 2, 2003. (Ex. K to Alito Decl.) Microsoft added that, due to business needs, it
would also begin to take steps to fill his position. (Id.) After receiving the letter, plaintiff
contacted Microsoft’s Human Resources manager and began to make arrangements to return to
work. (Exs. L, M to Alito Decl.)
One week after Microsoft sent the letter to Alston, his physician provided Microsoft with a
medical release indicating that plaintiff was being released by the doctor to return to work on
September 15, 2003, but that he “should not work more than 40 hours per week (including
traveling time), should be kept out of job related stressful situations, such as intense interpersonal
interactions and high profile presentations . . . ” (Ex. N to Alito Decl.) The doctor wrote that these
restrictions had an “expected duration” of one month. (Id.)
In an email to plaintiff, Microsoft agreed to temporarily accommodate these restrictions by
allowing Alston to work no more than 40 hours a week, and exempting him from making high
profile presentations. (Ex. O to Alito Decl.) However, Microsoft noted that “the job and level of a
Senior Consultant typically requires working more than a 40-hour work week and outside of a 9-5

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schedule due to the demands of customers who require the needs of their project schedules to be
met.” (Id.) The email stressed the realities of Alston’s job requirements, explaining that “because
you are a Consultant that lives remotely, travel is required due to the fact that you need to be onsite
at customer locations . . . .” and that “ a Senior Consultant will, at times be required to give high
profile presentations and on short notice.” (Id.) Microsoft emphasized that “[t]he restrictions your
doctor has suggested as accommodations will mean you are not performing essential job functions
of a Senior Consultant II. Accordingly, this accommodation will be temporary.” (Id.) Alston’s
response to Microsoft’s email expressed his agreement with Microsoft’s approach: “I should also
state that, per our last telephone conversation, these constraints represent a mutually satisfactory
business interpretation of my doctor’s actual restrictions . . . .” (Ex. P to Alito Decl.)
C.

Plaintiff’s Return to Work in September and October of 2003

Shortly before plaintiff returned to work, plaintiff learned that his supervisor, Albert Kim,
would not be awarding him a bonus based on his performance that year. (See Ex. Q to Alito Decl.)
Dr. Davidson wrote Teresa Ulus, a benefit manager for Microsoft, that Alston felt “traumatized”
by this information, and Davidson requested that Alston not be required to attend a meeting with
Kim that was scheduled for his first day back at work, Monday, September 15, 2003. (Id.) Alston
requested that the meeting be replaced by a brief telephone discussion that avoided any topics
related to his performance. (Id.) The letter stated that, “given his fragile health balance, being
confined to a room for 2.5 hours while absorbing a deluge of unpleasant news must be avoided at
all costs.” (Id.)
Microsoft denied this request, and Alston met with Kim on September 15. (Ex. R to Alito
Decl.) At this meeting, Kim updated plaintiff on the status of the financial services practice,
upcoming engagements, business initiatives, and discussed plaintiff’s mid-year review. (Id.)

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A few days after his return to work, plaintiff was asked to assist with an on-site project for
a Microsoft client beginning on September 22. (Ex. T to Alito Decl.) Alston was informed that
“the work will not exceed 40 hours a week (travel included).” (Id.) Microsoft avers that plaintiff
objected to this assignment and that, as a result, his start at the client was postponed to September
30, 2003 (see Def.’s Mem. of Law in Support of its Mot. for Summ. J. at 5), but there is no record
evidence to support this assertion.
On Saturday, September 27, Alston emailed James Cox, Senior Human Resources
Manager, regarding his self-assessment and upcoming performance review. (Ex. V to Alito Decl.)
Alston expressed concern that “Albert Kim and the overall management of the practice have
already circled the wagons and I will be denied a fair review.” (Id.) He requested that Kim be
removed from overseeing his review, that plaintiff be transferred to a new department, and that he
be given a week to complete the annual review. (Id.) Most notably, Alston proposed a
“compromise solution” to his concerns over his annual review. He wrote, “[C]ould we just call
this matter a draw, put out a consensus annual review, give me the 3.5 or 4.0 that I deserve and the
bonus & merit increases that accompany it? Under that scenario, I would be able to return to [the
client, Merrill Lynch, for] 3-4 (shortened) days a week beginning immediately, feel that I was
(ultimately) treated fairly and commence my search for a new department right away.” (Id.) Cox
responded, “I am concerned with this request in that you are implying that you are agreeing to
return to the client if you receive the rating you are expecting. I am sure you are aware but it is
important to note that your performance is evaluated and review ratings are rewarded based on
your performance relative to your peer group. ‘Calling it a draw’ would not be fair to you, your
peers, Albert [Kim], or [Microsoft].” (Id.)

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On the morning of September 30, Alston emailed Cox to inform him that he would not be
reporting to the client that day because his blood pressure was too high. (Ex. U to Alito Decl.)
Cox responded that “the important thing right now is that you address your health issues.” (Id.)
Ultimately, plaintiff worked on-site for the client for only “one to two weeks” during September
and October of 2003. (Ex. A to Alito Decl. at 147:1-147:5.)
Approximately a week and a half later, on October 10, Kim met with Alston to discuss his
performance review. (Ex. W to Alito Decl.) In an email to Cox, Kim described the meeting: “I
gave him his review and told him to take some time to read the review. He went straight to the
ratings section and looked very agitated. He said (paraphrasing) ‘I see I got a 3.0’—I said ‘Please
read it and let’s discuss . . . ’—He said (paraphrasing) ‘my doctor advised me for medical reasons I
should not undergo a review discussion.’ . . . He got up and left the office. He came back 10
seconds later and asked about his bonus. I told him his bonus is still $0 (I told him his bonus was
$0 several weeks ago). He looked like he was under the impression that it would have changed
since then. He walked out of the office and the office building for good. This all took place inside
of one minute.” (Id.)
D.

Plaintiff Resumes His Leave of Absence

Plaintiff requested, and received, a leave of absence effective October 13, 2003. (Ex. X to
Alito Decl.) The first three weeks of leave were considered an extension of his paid short-term
disability leave. (Id.) Microsoft informed plaintiff that, after three weeks, his short-term disability
benefits would be exhausted, and he would be placed on Inactive (unpaid) Disability. (Id.)
Microsoft provided plaintiff with the necessary information for completing an application for longterm disability benefits, and later submitted his application to the insurance carrier. (Exs. X, Y to
Alito Decl.)

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On March 29, 2004, the insurance carrier denied Alston’s claim for long-term disability
because Alston did not meet “the definition of disability as defined by the policy.” (Ex. AA to
Alito Decl.) The carrier noted that Alston claimed his disability stemmed from “hypertension,
diabetes, and adjustment disorder with mixed anxiety and depression.” (Id.) The carrier stated it
had reviewed in detail the medical documentation provided by Alston and found that it did not
“support any physical impairment or specific mental health impairment at the time you ceased
working in April 2003.” (Id.) It noted that there were “no diagnoses that would provide any
specific restrictions or limitations” and pointed out that Alston did not visit a psychologist until
November 2003—seven months after he first stopped working. (Id.)
E.

The Termination of Plaintiff’s Employment for Job Abandonment

In light of the insurance carrier’s denial of Alston’s claim for long-term disability benefits,
Microsoft determined that he would need to return to work or submit to independent medical
examinations to support his claim that he was unable to work due to a disability. (Declaration of
Teresa Ulus McDade dated August 17, 2011 (“McDade Decl.”) ¶ 4.) Accordingly, Ulus sent
Alston a letter dated April 1, 2004 that requested that he either submit a medical release from his
physician by April 12, 2004 and return to work, or report for independent medical examinations by
an internist and psychologist. (McDade Decl. ¶ 4; Ex. A to McDade Decl.) This letter was sent by
both express and regular mail to Alston’s address at 431 West 146th Street, New York, New York.
(Ex. A to McDade Decl.) This was the address plaintiff had used during his correspondence with
Microsoft regarding his short-term and long-term disability leave, and it was the address he listed
on his long-term disability application. (Exs. J, X, Z to Alito Decl.) In an email dated November
14, 2003, plaintiff had specifically confirmed to Ulus that “431 is still my correct address.” (Ex. Y
to Alito Decl.) The insurance carrier sent its decision denying plaintiff long-term disability

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benefits to this address, and plaintiff listed it as his return address in his letter dated April 10, 2004
appealing that decision. (Exs. AA, BB to Alito Decl.) At his deposition, taken in 2009, plaintiff
confirmed that this New York City address was a valid address for him in 2003 and “[i]t is still my
correct New York address.” (Ex. A to Alito Decl. at 182:20-25.) Plaintiff also acknowledged that
the letter was delivered to his New York address, and signed for, on or around April 2, 2004. (Ex.
A to Alito Decl. at 195:4-13; Ex. B to McDade Decl.)
Ulus’s letter directed plaintiff to respond by April 12, 2004. (Ex. A to McDade Decl.)
When he failed to do so, Ulus made additional efforts to contact him, both calling him at his
residence and sending emails to his personal email account and his Microsoft email account.
(McDade Decl. ¶ 6.) Plaintiff acknowledges that he saw the email from Ulus in his inbox on April
15 (Ex. A to Alito Decl. at 194:4-13), and that Ulus spoke with a member of his family by
telephone (Ex. A to Alito Decl. at 197:5-16).
In spite of these efforts, plaintiff did not contact Ulus or anyone else at Microsoft.
(McDade Decl. ¶ 7.) Accordingly, Microsoft considered plaintiff’s failure to respond to the April
1, 2004 letter or any of the follow-up inquiries to constitute an abandonment of his employment
(McDade Decl. ¶ 7; Ex. C to McDade Decl.), and terminated him effective April 15, 2004. (Ex. C
to McDade Decl.) A letter informing Alston that he was terminated was sent to him by mail and
by email. (Exs. C, D to McDade Decl.)
F.

Procedural History

In February 2005, Alston filed an administrative complaint against Microsoft, Kim, and
Ulus, with the New York City Commission on Human Rights (“NYCCHR”), alleging race and
disability discrimination in connection with his employment termination and other employment
actions throughout his employment. (Ex. G to Alito Decl.) After an investigation, the NYCCHR

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issued a Determination and Order dated November 15, 2007 dismissing Alston’s complaint. (Ex.
H to Alito Decl.) In an extensive opinion, the NYCCHR found that “that there is NO PROBABLE
CAUSE to believe that Respondents engaged in the unlawful discriminatory practices alleged.”
(Id. at 1 (emphasis in original).) It found that Microsoft “was careful to ensure” that Alston
received notice of the requirement to return to work or undergo independent medical examinations,
and that this requirement was reasonable. (Id. at 5.) The NYCCHR concluded that “there is no
evidence that Complainant’s race was a factor in Respondents’ decisions as to Complainant’s
employment, or that Respondent unlawfully retaliated against Complainant for seeking
accommodations of his disability. The evidence supports Respondent’s assertion that by failing to
contact his employer, Complainant abandoned his position with Microsoft.” (Id. at 5-6.)
Alston next filed a request for review and vacatur of the NYCCHR’s Determination to the
Chair of the NYCHHR. (Ex. I to Alito Decl. at 7-8.) The review was granted and in a
Determination and Order After Review dated July 17, 2008, the Commission’s decision was
affirmed. (Id. at 8.) Plaintiff then filed a petition pursuant to Article 78 of the N.Y. C.P.L.R. in
New York Supreme Court seeking to vacate the NYCCHR’s determination. (Id.) In an Opinion
and Order dated October 6, 2009, plaintiff’s petition was dismissed in its entirety on the grounds
that the petition was time-barred and that it would fail on the merits even if it were not time-barred.
(Id. at 9-12.)
In the interim, the U.S. Equal Employment Opportunity Commission (“EEOC”) closed the
file on plaintiff’s EEOC charge of discrimination, adopted the NYCCHR’s determination, and
informed Alston of his right to sue in federal court. (Ex. D to Alito Decl.)
Plaintiff filed this complaint in April 2008. (Compl.) As noted above, Judge Chin in 2009
dismissed all of plaintiff’s claims except for his ADA and Title VII wrongful termination claims

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against Microsoft Corporation. See Alston v. Microsoft, No. 08 Civ. 3547, 2009 U.S. Dist. LEXIS
39662 (S.D.N.Y. April 27, 2009).
II.

DISCUSSION
A.

Summary Judgment Standard

Summary judgment is appropriate only if the evidence shows that there is no genuine
dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Jain v. McGraw-Hill, No. 09
Civ. 6520, 2011 U.S. Dist. LEXIS 125067, at *8 (S.D.N.Y. October 27, 2011). In determining
whether a genuine dispute of material fact exists, the Court “is to resolve all ambiguities and draw
all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Nonetheless, the party
opposing summary judgment “may not rely on mere conclusory allegations nor speculation, but
instead must offer some hard evidence” in support of its factual assertions. D’Amico v. City of
New York, 132 F.3d 145, 149 (2d Cir. 1998).
B.

Plaintiff’s Title VII and ADA Claims
a.

Legal Framework

Plaintiff’s disability discrimination and racial discrimination claims are analyzed using the
three-part framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See also Brown v. City of Syracuse, 2012 U.S. App. LEXIS 5281, at *21 (2d Cir. Mar. 13, 2012)
(applying McDonnell Douglas framework to Title VII claim); McBride v. BIC Consumer Prods.
Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (applying the McDonnell Douglas framework to ADA
claim). The McDonnell Douglas framework provides that, once a plaintiff makes out a prima facie
case of retaliation or discrimination, the burden of production shifts to the defendant to articulate a

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legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411
U.S. at 802-03. If the defendant produces evidence of such a reason, the plaintiff must point to
evidence that would allow a reasonable factfinder to conclude that the defendant’s reason is merely
a pretext for discrimination or retaliation. Id. at 804.
b.

Plaintiff Cannot Establish that Microsoft’s Reasons for
Terminating Him were Pretext for Discrimination

For the purposes of this motion, the Court assumes that Alston has established prima facie
cases for Title VII and ADA discrimination, and finds that Microsoft has met its burden of
identifying a legitimate, nondiscriminatory reason for Alston’s termination. Microsoft points to
ample evidence in the record demonstrating that, after the insurance carrier denied Alston’s claim
for long-term disability benefits, it made efforts to arrange for Alston to return to work. (Ex. A to
McDade Decl.; McDade Decl. ¶ 5-6.) Microsoft has also set forth uncontested evidence that
Alston did not respond to its letter, its phone call, or its multiple emails, despite being given a twoweek period in which to respond. (McDade Decl. ¶ 7.) Microsoft has therefore articulated a
legitimate, non-discriminatory reason for termination—job abandonment.
The burden thus shifts back to Alston to demonstrate that the stated reason for his
termination was merely a pretext for unlawful discriminatory intent. Plaintiff may “succeed in this
either directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Plaintiff has failed to meet this burden. Alston’s purported evidence of pretext is
insufficient to allow a reasonable factfinder to find for him on this issue. As evidence of pretext,
Alston argues that the insurance carrier’s letter denying his long-term disability benefits was
without merit and could not have provided a credible basis for Alston’s termination. (Pl.’s Mem.
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of Law in Support of Pl.’s Mot for Summ. J. at 32.) However, this letter was not the basis for
Alston’s termination—it merely triggered Microsoft’s repeated and unavailing efforts to arrange
for Alston to return to work. The basis for Alston’s termination was his failure to respond to those
efforts as well as his failure to return to work. (Ex. D to McDade Decl.) As Jim Cox, Microsoft’s
Senior Human Resources Manager, wrote Alston on April 15, “Despite Teresa [Ulus]’s efforts to
reach you, you have failed to contact Microsoft or return to work with a supporting medical
release. Therefore, per the letter and email sent to you, your employment is terminated effective
4/15/04.” (Id.) The underlying merit of the insurance carrier’s determination is irrelevant here
and, indeed, Alston has already directly challenged that determination. (See Ex. BB to Alito Decl.)
It was not unreasonable for Microsoft to rely on the insurance carrier’s denial of benefits in
making its personnel decisions. Nothing in the record suggests that Microsoft’s reliance on the
insurance carrier’s decision was a pretext for racial or disability discrimination.
Plaintiff also contends that Microsoft’s efforts to reach him demonstrate pretext. He asserts
that Microsoft knew that he was living primarily in Philadelphia, presumably implying that
Microsoft intentionally sent the April 1, 2004 letter to the wrong address. (Pl.’s Mem. of Law in
Support of Pl.’s Mot for Summ. J. at 33-34.) There is no record evidence that suggests that
Microsoft believed that plaintiff’s correct mailing address was in Philadelphia. To the contrary,
plaintiff used his New York address in his correspondence with Microsoft regarding his short-term
and long-term disability benefits, and as late as November 2003 he had specifically confirmed to
Microsoft that the New York address was correct. (Exs. J, X, Y, Z to Alito Decl.)
Plaintiff also takes issue with the emails sent by Ulus on April 13 and her phone call. He
claims that the April 13 email was unreasonable because it was an “ultimatum” which provided
“less than 24 hours turnaround time.” (Pl.’s Mem. of Law in Support of Pl.’s Mot for Summ. J. at

12

37.) This argument is unavailing. Microsoft sent Alston the emails because he had already failed
to respond to the April 1 letter which requested a response by April 12. The emails—rather than
demonstrating pretext for discrimination—in fact demonstrate additional good faith efforts by
Microsoft to contact Alston and arrange for his return to work.
Alston claims that the phone call from Ulus “could not have been designed to prevent [his]
termination.” (Pl.’s Mem. of Law in Support of Pl.’s Mot for Summ. J. at 38.) The record
indicates that Ulus called Alston’s home on April 14 and left a detailed message with a woman
who answered the telephone. (Ex. C to McDade Decl.) As with the emails discussed above, the
phone call—far from demonstrating pretext—indicates the additional efforts undertaken by
Microsoft to contact plaintiff.
In sum, plaintiff has identified no evidence in the record that supports his contention that
Microsoft’s stated reason for his termination—job abandonment—was actually a pretext for racial
or disability discrimination.
c.

Plaintiff’s “Failure to Accommodate” Claim is Meritless

Plaintiff also contends that his termination constituted a failure to accommodate plaintiff’s
alleged disability. (Pl.’s Mem. of Law in Support of Pl.’s Mot for Summ. J. at 25-31.)3 This
argument is without merit.
Discrimination in violation of the ADA includes, inter alia, “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability.” 42 U.S.C. § 12112(b)(5)(A); see also Brady v. Wal-Mart Stores, Inc., 531 F.3d

3

Plaintiff also asserts that Microsoft failed to accommodate him during his return to work in September and October
of 2003. (Pl.’s Mem. of Law in Support of Pl.’s Mot for Summ. J. at 29-31.) In granting Microsoft’s motion for
partial dismissal, Judge Chin dismissed all of plaintiff’s claims relating to events occurring prior to his discharge as
untimely, and held that plaintiff could pursue only his discriminatory discharge claims. (Ex. C to Alito Decl. at 1516.) Plaintiff cannot, therefore, rely on any pre-discharge issues to support his “failure to accommodate” claim.

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127, 134 (2d Cir. 2008). For the purposes of the ADA, a “qualified individual” is “an individual
who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A plaintiff
makes out a prima facie case of disability discrimination arising from a failure to accommodate by
showing each of the following: “(1) [P]laintiff 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 reasonable
accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the
employer has refused to make such accommodations.” Graves v. Finch Pruyn & Co., Inc., 457
F.3d 181, 184 (2d Cir. 2006) (quoting Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d
113, 118 (2d Cir. 2004)). An employer can successfully respond to a prima facie claim if it shows
(1) that making a reasonable accommodation would cause it hardship, and (2) that the hardship
would be undue. Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999).
Even assuming that plaintiff could make out a prima facie case, requiring Microsoft to
extend an indefinite leave of absence to plaintiff is an undue hardship. The U.S. Court of Appeals
for the Second Circuit has explained that where there is no indication of when an employee will
return, an employer has no obligation to grant an employee “an indefinite leave of absence.”
Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 9 (2d Cir. 1999) (citing Walton v. Mental
Health Ass'n, 168 F.3d 661, 671 (3d Cir. 1999); Nowak v. St. Rita High Sch., 142 F.3d 999, 1004
(7th Cir. 1998) (“The ADA does not require an employer to accommodate an employee who
suffers a prolonged illness by allowing him an indefinite leave of absence.”)). In Walton v. Mental
Health Ass’n, the Third Circuit affirmed a district court that found that an employee’s request for
indefinite leave was an undue burden on the employer. 168 F.3d at 671. The plaintiff in Walton
had been given 125 days of leave over four years, plus an additional two months of leave prior to

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her termination. Id. The Third Circuit noted that “[a]lthough unpaid leave supplementing regular
sick and personal days might, under other facts, represent a reasonable accommodation, an
employer does not have to allow leave of this type to the extent that [the employer] had already
granted it to [the employee]. A blanket requirement that an employer allow such leave is beyond
the scope of the ADA when the absent employee simply will not be performing the essential
functions of her position.” Id.
Microsoft had already provided significant accommodations for Alston. As plaintiff
himself concedes in his briefing, Microsoft made a number of significant accommodations for him,
including five months of paid leave from April to September 2003, agreeing to a 40-hour work
week for a one-month period in September to October 2003, agreeing to exempt him from
delivering high profile presentations for that same one-month period, and another six months of
leave from October 2003 to April 2004 (three weeks of which were paid). (Pl.’s Mem. of Law in
Support of Pl.’s Mot for Summ. J. at 25-26; Exs. J, O, X to Alito Decl.) After Alston had been on
leave for eleven months out of the past year, Microsoft reasonably and repeatedly attempted to
ascertain when Alston would return to work. Alston failed to respond to all inquiries. Requiring
an employer to keep an employee on an extended leave of absence with no indication of whether
or when the employee will return constitutes an undue hardship under the facts of this case.
Plaintiff also takes the position that he should have been permitted to undertake
independent medical evaluations before being terminated. (Pl.’s Mem. of Law in Support of Pl.’s
Mot for Summ. J. at 27.) This argument is nonsensical. Microsoft’s April 1, 2004 letter clearly
instructed plaintiff to advise Microsoft if he intended to submit to independent medical
evaluations. (Ex. A to McDade Decl.) Plaintiff failed to respond in any way. Microsoft is not
required to infer—from plaintiff’s total silence—that Alston had intentions to either return to work

15

or to undertake the medical examinations. Microsoft gave plaintiff ample opportunity to arrange
for the medical examinations. Plaintiff s failure to act is not a failure to accommodate on the part
of Microsoft.

III.

CONCLUSION
Plaintiff has failed as a matter oflaw to demonstrate that he would be entitled to prevail on

his wrongful tennination claims. To the contrary, he has failed to present evidence of any genuine
dispute of material fact that could allow a reasonable fact finder to find in his favor. Accordingly,
this Court denies plaintiffs motion for summary judgment and grants defendant's motion for
summary judgment.
Dated: New York, New York
March 27, 2012

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