Paxton v. Fluor Enterprises, Inc.

Filing 54

OPINION AND ORDER.......Fluors October 26, 2016 motion for summary judgment is granted as to Paxtons discrimination and failure to accommodate claims, and it is denied as to her retaliation claim. (Signed by Judge Denise L. Cote on 3/3/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- X
BARBARA PAXTON,
:
:
Plaintiff,
:
:
-v:
:
FLUOR ENTERPRISES, INC.,
:
:
Defendant.
:
--------------------------------------- X

15cv3737 (DLC)
OPINION AND ORDER

APPEARANCES:
For the plaintiff:
Brittany Sloane Weiner
Marsha Mozammel
Imbesi Law P.C.
450 Seventh Avenue, Suite 1408
New York, NY 10123
For the defendants:
Amy Joy Traub
Jacqlyn Rebecca Rovine
Baker & Hostetler LLP
45 Rockefeller Plaza
New York, NY 10111
DENISE COTE, District Judge:
Barbara Paxton (“Paxton”) has brought this action against
her former employer, Fluor Enterprises, Inc. (“Fluor”), alleging
that, in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101-12213, and the New York State Human
Rights Law (“NYSHRL”), she was not reasonably accommodated and
discharged.
judgment.

On October 26, 2016, Fluor moved for summary
For the reasons set forth below, the motion is

granted in part.

Background
The following facts are undisputed or taken in the light
most favorable to the plaintiff.

Paxton was born in 1950 with a

single cleft lip and single cleft palate.

As a child, Paxton

had three or four surgeries to address her cleft lip and palate,
following which this condition was no longer visible to lay
observers.
Paxton was hired in 1998 by Fluor’s predecessor, Grubb &
Ellis Management Services, Inc. (“GEMS”), as an administrator
handling construction projects for GEMS’s contract with IBM.
From 2000 until 2006, Paxton worked for GEMS in one of many
cubicles situated in a single, large room (the “open
landscape”).

During that time, Paxton received positive

performance reviews.

Paxton testified at her deposition that

she was repeatedly sick and absent from work as the result of
sinus infections.

During that period, Paxton’s physician, Dr.

Kevin Lieu, prescribed her medication on only four occasions. 1
In early 2006, Paxton asked the GEMS site manager, Raymond
Andreassen (“Andreassen”), that she be permitted to sit in an
enclosed office space.
office.

Paxton was relocated to an enclosed

At Andreassen’s request, Paxton provided a note from

Although Paxton contends that Dr. Lieu’s records are
incomplete, she presents no evidence other than her own
conclusory testimony to support this contention.
1

2

Dr. Lieu stating, “Paxton is recommended to avoid drafts due to
sinus infections.”

Around the same time, Paxton informed

Andreassen that she had a cleft lip and palate and had undergone
surgeries as a child to address this condition.

Paxton also

told Andreassen that the surgeries had left her susceptible to
colds and sinus infections.

Paxton remained in the office from

February 2006 until September 2011.

During that period, Dr.

Lieu prescribed Paxton medication on 14 occasions.
On October 1, 2011, Fluor replaced GEMS on the IBM contract
and took over GEMS’s office space.

Many GEMS employees,

including Paxton, were interviewed and hired for positions with
Fluor.

The only reference to Paxton’s condition on her Fluor

employment application was that she had a “special needs office
environment.”

As part of the transition from GEMS to Fluor,

Fluor undertook a reorganization of Paxton’s department,
including reassigning Paxton to support a larger team with a
different and more demanding set of tasks.
Given this new team and role, Fluor determined that it
would be necessary to move Paxton from her enclosed office to a
cubicle in the open landscape.

Informed by Andreassen that

Paxton should be situated so as to avoid drafts, Fluor
management sought to locate a cubicle with minimal airflow.
Although Fluor measured the air in the proposed cubicles and
found that they had an air flow velocity below one foot per
3

minute, Paxton refused to move out of her office on the ground
that it would interfere with her disability.
In an email sent on the morning of October 26, 2011,
Fluor’s director of operations and management, Steve Short
(“Short”), explained Fluor’s decision that Paxton would be
relocated to the open landscape and informed Paxton that Fluor
would provide a letter and a medical certification form for her
to deliver to her physician to document her disability.

Rather

than use Fluor’s form, however, Paxton procured her own note
from Dr. Lieu, which stated, “Ms. Paxton is suffering from bad
URI/sinusitis/bronchitis, whenever she is exposed to drafts [o]r
dusty environment due to her physical disabilities from previous
surgeries.

Therefore she has been advised to avoid such

environment at all times.”
On November 2, 2011, Paxton met with Andreassen and two of
Fluor’s human resources representatives, Mary Smith and
Stephanie Livingston (“Livingston”).

Andreassen brought Fluor’s

medical letter and certification form to this meeting.

While

discussing Fluor’s and Paxton’s concerns about Paxton’s
relocation and alleged disability, Paxton became upset and
threatened to leave.

Livingston warned Paxton that if she left

the meeting, she would be reprimanded.

Nonetheless, Paxton

left, and Livingston decided to discharge Paxton.

The following

day, Fluor sent Paxton a letter informing her of this decision.
4

Paxton commenced this action before the Honorable Analisa
Torres on May 14, 2015.

She brings claims against Fluor for

disability discrimination, failure to provide a reasonable
accommodation, hostile work environment, 2 and retaliation.
moved for summary judgment on October 26, 2016.

Fluor

On November 22,

2016, the case was reassigned to this Court.
Discussion
Summary judgment may not be granted unless all of the
submissions taken together “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“Summary

judgment is appropriate when the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. County of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (per curiam) (citation omitted).

The moving party bears

the burden of demonstrating the absence of a material factual
question, and in making this determination, the court must view
all facts in the light most favorable to the non-moving party.
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456
(1992); Gemmink v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir.
2015), cert. denied, 136 S. Ct. 1684 (2016) (mem.).

If the

Paxton did not oppose Fluor’s motion with respect to her
hostile work environment claim. This claim is deemed abandoned.
Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 14344 (2d Cir. 2016).
2

5

moving party makes this initial showing, the burden then shifts
to the opposing party to establish a genuine dispute of material
fact.

El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir.

2016).
The party opposing summary judgment “may not merely rest on
the allegations or denials of his pleading; rather his response,
by affidavits or otherwise as provided in the Rule, must set
forth specific facts demonstrating that there is a genuine issue
for trial.”

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)

(citation omitted); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986).

“Conclusory statements, conjecture, and

speculation are insufficient to create a genuine factual
dispute,” Major League Baseball Props., Inc. v. Salvino, Inc.,
542 F.3d 290, 319 (2d Cir. 2008), as is “mere speculation or
conjecture as to the true nature of the facts.”

Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts -- “facts that might affect
the outcome of the suit under the governing law” -- will
properly preclude the entry of summary judgment.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In cases involving claims of employment discrimination “an
extra measure of caution is merited in [considering] summary
judgment” because “direct evidence of discriminatory intent is
rare and such intent must often be inferred from circumstantial
6

evidence found in affidavits and depositions.”

Schiano v.

Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006)
(citation omitted).

Nonetheless, “a plaintiff must provide more

than conclusory allegations to resist a motion for summary
judgment.”
2008).

Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.

Ultimately, the test for summary judgment “is whether

the evidence can reasonably support a verdict in plaintiff’s
favor.”

James v. N.Y. Racing Ass’n, 233 F.3d 149, 157 (2d Cir.

2000).
I.

Disability Discrimination
A. ADA
Paxton challenges her discharge as the product of

discrimination on the basis of disability, in violation of the
ADA.

The ADA prohibits “discriminat[ion] against a qualified

individual on the basis of disability in regard to [inter alia]
. . . discharge of employees.”

42 U.S.C. § 12112(a).

An ADA

employment discrimination claim is subject to the burdenshifting
framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1972).

McMillan v. City of New York, 711 F.3d

120, 125 (2d Cir. 2013).
Under McDonnell Douglas, once a plaintiff makes out a prima
facie case of retaliation or discrimination, the burden of
production shifts to the defendant to articulate a legitimate,
non-discriminatory reason for the adverse employment action.
7

411 U.S. at 802-04.

If the defendant produces evidence of such

a reason, the plaintiff must point to evidence sufficient to
permit a rational factfinder to conclude that the defendant’s
reason is merely a pretext or that the defendant’s action was
based at least in part on discrimination or retaliation.

Id. at

804-05; Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir.
2014) (per curiam).
In the context of the ADA,
to establish a prima facie case . . . , a plaintiff
must show by a preponderance of the evidence that: (1)
his employer is subject to the ADA; (2) he was
disabled within the meaning of the ADA; (3) he was
otherwise qualified to perform the essential functions
of his job, with or without reasonable accommodation;
and (4) he suffered an adverse employment action
because of his disability.
McMillan, 711 F.3d at 125 (citation omitted).
Summary judgment is granted to Fluor with respect to
Paxton’s disability discrimination claim.

Plaintiff has failed

to establish any genuine dispute of material fact as to an
essential element of her prima facie case: on the evidence in
the record, no reasonable jury could find that Paxton is
disabled within the meaning of the ADA.

8

The ADA defines disability to “mean[], with respect to an
individual –
(A) a physical or mental impairment that substantially
limits one or more major life activities of such
individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment
. . . .” 3
42 U.S.C. § 12102(1).

The ADA further defines major life

activities as including “caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working,” as well as
“the operation of a major bodily function,” such as “functions
of the immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.”

Id. § 12102(2).

Finally, the ADA instructs that “[t]he definition of disability
. . . shall be construed in favor of broad coverage of
individuals . . . , to the maximum extent permitted by the
[ADA’s] terms.”

Id. § 12102(4)(A).

In determining whether an impairment “substantially limits”
one of the aforementioned activities, courts are to construe
that term “broadly in favor of expansive coverage.”

29 C.F.R.

Paxton concedes that Fluor did not regard her as having a
disability for purposes of the third of these definitions.
3

9

§ 1630.2(j)(1)(i).

Courts may “consider, as compared to most

people in the general population, the condition under which the
individual performs the major life activity; the manner in which
the individual performs [it]; and/or the duration of time it
takes the individual to perform [it].”

Id. § 1630.2(j)(4)(i).

Paxton identifies her disability as her birth with a cleft
lip and palate.

She identifies three major life activities that

she contends are substantially limited by her cleft lip and
palate: speaking, eating, and breathing.

With regard to

speaking, Paxton testified at her deposition that her cleft lip
and palate have not prevented her from speaking but that she
“had speech lessons.”

As to eating, Paxton testified at her

deposition, “I have to be careful in chewing because I’ve had
surgery on my pallet [sic] and I certainly don’t want anything
sharp or jabbing into it or anything like that, but on a daily
basis it’s not a problem.”

There is nothing in her medical

records concerning any impairment that she may experience in
these life activities.
In order to survive summary judgment in the absence of
medical evidence, the Second Circuit requires “evidence that
conveys, in detail, the substantially limiting nature of [the
alleged] impairment.”

Rodriguez v. Village Green Realty, Inc.,

788 F.3d 31, 44 (2d Cir. 2015).

Paxton’s vague and undetailed

testimony does not support the inference that the speaking or
10

eating limitations, if any, imposed by her congenital cleft lip
and palate are substantial.

On this testimony alone, no

reasonable jury could find a substantial limitation on Paxton’s
ability to speak or eat.
Paxton’s third and final asserted limitation is on her
ability to breathe.

The crux of Paxton’s contention is that her

cleft lip and palate render her more susceptible to respiratory
infections and that, as a result, she must avoid cold, drafty,
or dusty environments.

The record contains evidence that Paxton

at times suffered from infections such as sinusitis and
rhinitis.

The evidence, however, does not support an inference

that these infections were caused by Paxton’s cleft lip and
palate.

Paxton has provided no expert testimony that these

infections were caused by the surgically repaired cleft lip and
palate.

Although Paxton suggested to at least one of her

medical providers that there was such a causal link, the medical
records do not reflect that any providers made this
determination. 4

Whereas Paxton can competently testify to her

Dr. Lieu’s unsworn letter to Fluor in 2011, which states that
Paxton “is suffering from bad URI/sinusitis/bronchitis, whenever
she is exposed to drafts [o]r dusty environment due to her
physical disabilities from previous surgeries,” is inadmissible
to prove the truth of the matter asserted. See Fed. R. Evid.
802; Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir.
2005) (“[U]nsworn letters from physicians generally are
inadmissible hearsay that are an insufficient basis for opposing
a motion for summary judgment.”).
4

11

experience of her symptoms, this complex issue of medical
causation is not within her personal knowledge.

See Fed. R.

Evid. 602; cf. Barnes v. Anderson, 202 F.3d 150, 158-61 (2d Cir.
1999) (reaching the same conclusion in the personal injury
context); Henry v. A/S Ocean, 512 F.2d 401, 408 (2d Cir. 1975)
(same).

In sum, Paxton points to no competent, admissible

evidence to establish that her cleft lip and palate, or the
surgical repairs to those conditions, substantially limited her
ability to breathe.
Having failed to identify any genuine dispute as to whether
Paxton is disabled within the meaning of the ADA, Paxton cannot
establish a prima facie case of disability discrimination under
the ADA.

Accordingly, summary judgment is granted with respect

to this claim.
B. NYSHRL
For much the same reasons, Paxton cannot establish a prima
facie case of disability discrimination under the NYSHRL.
Although the NYSHRL defines “disability” more broadly than the
ADA,

Krist v. Kolombos Rest., Inc., 688 F.3d 89, 97-98 (2d Cir.

2012), it nevertheless requires “a physical, mental or medical
impairment resulting from anatomical, physiological, genetic or
neurological conditions which prevents the exercise of a normal
bodily function or is demonstrable by medically accepted

12

clinical or laboratory diagnostic techniques.”

N.Y. Exec. Law

§ 292(21)(a).
Paxton has conceded that her cleft lip and palate do not
prevent the exercise of any “normal bodily function.”

And for

the reasons just stated, there is no competent evidence of any
impairment that is demonstrable by medically accepted clinical
or laboratory diagnostic techniques.

Therefore, summary

judgment is granted with respect to Paxton’s NYSHRL disability
discrimination claim.
II.

Failure to Accommodate
Paxton’s failure to accommodate claims under the ADA and

NYSHRL also require that she be a person with a disability
within the meaning of those statutes.

42 U.S.C.

§ 12112(b)(5)(A); N.Y. Exec. Law § 296(3)(a).

Because there is

no genuine dispute that Paxton does not have a disability within
the meaning of the ADA or the NYSHRL, she cannot sustain her
failure to accommodate claims against Fluor.

Accordingly,

summary judgment is granted with respect to those claims.
III. Retaliation
Finally, Paxton alleges that she was discharged in
retaliation for her complaints about disability discrimination
and accommodation.

Although Paxton’s discrimination and

accommodation claims must fail, she may nevertheless succeed on
her retaliation claims “so long as [s]he can establish that
13

[s]he possessed a good faith, reasonable belief that the
underlying challenged actions of the employer violated the law.”
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)
(citation omitted).

Retaliation claims under the ADA and NYSHRL

follow the same standards and the previously described McDonnell
Douglas framework.

See id.

To state a prima facie case of retaliation, a plaintiff
“must show that: (1) he engaged in an activity protected by the
ADA; (2) the employer was aware of this activity; (3) the
employer took some adverse employment action against him; and
(4) a causal connection exists between the alleged adverse
action and the protected activity.”

Id.; see also 42 U.S.C.

§ 12203(a); N.Y. Exec. Law § 296(7).
this prima facie stage is de minimis.”

“A plaintiff’s burden at
Treglia, 313 F.3d at

719.
Fluor does not appear to contest the first three prongs of
Paxton’s prima facie case: Plaintiff’s complaints to her
supervisors and to human resources concerning her alleged
disability were activities protected under the ADA, Fluor was
aware of those activities, and Fluor discharged Paxton.

In

addition, Fluor has not shown that it is entitled to summary
judgment on the final prong: that there was a causal connection
between Paxton’s complaints and her discharge.

Here, Paxton’s

discharge followed within three weeks of her first complaints
14

and was directly precipitated by a meeting with Fluor management
to discuss Paxton’s complaints.

See Littlejohn v. City of New

York, 795 F.3d 297, 319-20 (2d Cir. 2015).
Moreover, Paxton has presented evidence from which a jury
could conclude that Fluor’s stated basis for discharging Paxton
-- insubordination -- was a “pretext for impermissible
retaliation.”

Treglia, 313 F.13 at 721 (citation omitted).

Given this genuine dispute of material fact, summary judgment
must be denied with respect to Paxton’s ADA and NYSHRL
retaliation claims.
Conclusion
Fluor’s October 26, 2016 motion for summary judgment is
granted as to Paxton’s discrimination and failure to accommodate
claims, and it is denied as to her retaliation claim.
SO ORDERED.
Dated:

New York, New York
March 3, 2017
________________________________
DENISE COTE
United States District Judge

15