Nazario v. ProMed Personnel Services NY Inc. et al

Filing 85

OPINION AND ORDER re: 81 MOTION for Summary Judgment . filed by ProMed Personnel Services NY Inc., 61 MOTION for Summary Judgment . filed by United Cerebral Palsy of New York City, Inc.. For the foregoing reasons, Pr omed's motion for summary judgment against Plaintiff is GRANTED in part and DENIED in part, and Plaintiff's claims for retaliation under the ADA, discrimination for failure to accommodate under the NYCHRL and discriminatory discharge unde r the ADA and NYCHRL survive. UCP's motion for summary judgment against Plaintiff is DENIED, and Promed's motion for summary judgment against UCP is DENIED. The Clerk of Court is respectfully directed to close the motions at Docket No. 61 and Docket No. 81. (Signed by Judge Lorna G. Schofield on 6/19/2017) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------ X
:
:
NELLY NAZARIO,
:
Plaintiff,
:
-against:
:
:
PROMED PERSONNEL SERVICES
:
NY INC., et al.,
Defendants. :
------------------------------------------------------------ X

6/19/2017

15 Civ. 6989 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Nelly Nazario brings this action against Defendants Promed Personnel Services
NY Inc. (“Promed”) and United Cerebral Palsy of New York City, Inc. (“UCP”), alleging
violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the
New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq.
Defendants Promed and UCP separately move for summary judgment on Plaintiff’s claims.
Promed also moves for summary judgment on cross-claims made by UCP or, in the alternative,
to sever those claims. For the following reasons, Promed’s motion for summary judgment
against Plaintiff is granted in part and denied in part; UCP’s motion for summary judgment
against Plaintiff is denied; and Promed’s motion for summary judgment on UCP’s cross-claims
is denied.
BACKGROUND
The following facts are drawn from the evidence submitted by the parties in connection
with these motions. For purposes of this Opinion, all factual disputes are resolved, and all
reasonable inferences are drawn, in favor of the non-moving party. See Wright v. N.Y. State
Dep’t of Corr., 831 F.3d 64, 71–72 (2d Cir. 2016).

A.

Promed

Defendant Promed is a staffing agency that places health care professionals with outside
organizations. When a client advises Promed of a staffing need, Promed identifies prospective
applicants, conducts an initial interview and then sends applicants to the client to be interviewed.
If the client approves an applicant, such as Plaintiff, Promed screens her, and if she successfully
completes the screening, Promed hires her and assigns her to work for the client.
Promed is the employer of record for such employees and is responsible for determining
their wages, paying them and handling their taxes, insurance and worker’s compensation.
Promed also retains the authority to fire, discipline and transfer its employees. According to the
“Employee Grievance Policy” in Promed’s employee handbook, if a Promed employee believes
that she is being discriminated against, the employee shall not leave her job assignment but shall
immediately contact Promed’s corporate offices, notify her supervisor at the facility, follow the
facility supervisor’s instructions, ask that a Promed representative be included in hearing the
instructions and await direction from Promed about how to proceed.
UCP is Promed’s only client who uses paraprofessionals such as Plaintiff.
B.

UCP

Defendant UCP is a not-for-profit agency whose Staten Island Children’s Program
provides comprehensive educational and therapeutic services for young children with physical
and/or developmental disabilities. The program has two sessions each year -- one that runs from
September to June and a six-week summer session that finishes in August. Many students in the
program require a one-to-one paraprofessional to assist them. The majority of these students
require their paraprofessional to lift and position them, as well as bend, kneel and move heavy
objects.

2

Pursuant to an agreement between Promed and UCP dated January 18, 2013, if a student
required a one-to-one paraprofessional, UCP would request, and Promed would provide,
paraprofessional applicants to be interviewed. After interviewing candidates, UCP would select
which candidates to hire and assign them to individual students. If a given paraprofessional was
not working out, UCP could dismiss her.
C.

Plaintiff’s Relationship with Promed and UCP

On April 5, 2013, Plaintiff applied to Promed for a paraprofessional position at UCP.
Promed arranged for Plaintiff to interview with Frank Mercogliano, the director of the UCP
Staten Island Children’s Program. After the interview, UCP informed Plaintiff that she would be
working at UCP. On April 21, 2013, Promed hired Plaintiff as an employee. Plaintiff received
employee training from Promed, and signed a number of forms for Promed, including a form that
acknowledges her understanding that she was a Promed employee and that only Promed could
terminate her employment. Plaintiff further acknowledged her understanding that if an
assignment ended, she should report to Promed for a new one.
On around April 29, 2013, Promed assigned Plaintiff to UCP’s Staten Island Children’s
Program as a paraprofessional. UCP set the days and hours that Plaintiff worked. Plaintiff was
supervised by the UCP teacher in her classroom and asked the teacher any questions she had
about her duties and responsibilities as a one-to-one paraprofessional. When Plaintiff needed
time off, she contacted UCP. Plaintiff was never informed that her position might be temporary.
UCP initially assigned Plaintiff to a student who was very “hyper” and required Plaintiff
to lift and bend. Other students were easier to care for. Approximately four to six weeks after
she began working at UCP, Plaintiff told Mercogliano that she was experiencing neck and back
pain as a result of looking after her student, and requested reassignment to another child.

3

Mercogliano said that he would “see what he could do.” Approximately two weeks later,
Mercogliano assigned Plaintiff to a student who was more physically demanding than her first
child. Plaintiff’s second student could not walk, lift himself up or sit up by himself. Plaintiff
had to lift him, take him out of his chair and carry him to the changing table. Mercogliano told
Plaintiff that her second student was the only other child available.
While Plaintiff’s second student might have been the only child without an assigned oneto-one paraprofessional at that time, Plaintiff could have been reassigned to an easier child if
UCP had switched her with another paraprofessional. Two of the paraprofessionals who were
hired after Plaintiff were assigned to children who did not require lifting, and some children had
paraprofessionals for predominantly emotional needs. Mercogliano never considered switching
Plaintiff to one of these students. When Plaintiff asked Mercogliano to switch her with another
paraprofessional, he told her that reassignments are difficult because parents do not like when
their child’s paraprofessional is changed. Plaintiff contacted Promed for help obtaining an
accommodation, but Promed did not contact Mercogliano.
On June 17, 2013, Plaintiff was treated for neck pain at an urgent care clinic and reported
the visit to UCP. On August 5, 2013, she returned to the clinic for significant neck pain. The
clinic diagnosed her with cervical radiculopathy, provided her a note excusing her from work
until August 7, 2013, and requested that she be excused from work duties requiring regular
lifting. When Plaintiff returned to work on August 7, 2013, Mercogliano told her that she could
not return until she had a doctor’s note approving her for full duty. Plaintiff again contacted
Promed for help obtaining an accommodation for her neck problems. Promed again did nothing,
despite assurances that they would contact UCP.
On August 12, 2013, Plaintiff submitted a doctor’s note to UCP advising that she was

4

prohibited from lifting and could not return to full duty until she was seen by a neurologist. On
August 19, 2013, Plaintiff saw a neurologist, who approved her return to work on August 26,
2013, provided appropriate restrictions were in place. At that time, the Staten Island Children’s
Program was on a break and would not restart until September. When Plaintiff contacted UCP in
late August about returning to work, Mercogliano told her that some paraprofessionals would be
laid off, but that the program had 35 new children coming in and that he would see what he could
do for her in September based on the needs of those children.
On September 11, 2013, Plaintiff called UCP to inquire about further employment. UCP
informed her that they did not need anyone at that time, but would call if they did. Plaintiff did
not call Promed to seek other employment. An internal Promed file on Plaintiff includes an
entry dated January 10, 2014, which states “DO NOT SEND TO UCP.”
STANDARD
Summary judgment is appropriate when the record before the court establishes 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). A genuine dispute as to a material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of informing the court of the basis for the
summary judgment motion and identifying those portions of the record that demonstrate the
absence of a genuine dispute as to any material fact. Fed. R. Civ. P. 56(c)(1); see, e.g., Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Victory v. Pataki, 814 F.3d 47, 58–59 (2d Cir.
2016). Courts must construe the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in the non-moving party’s favor. See Anderson, 477 U.S. at

5

255. “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts
to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.
2010) (alteration in original) (citation omitted). Instead, a party asserting that a fact is genuinely
disputed “must support the assertion” by citing to the record or showing that “the materials cited
do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c).
DISCUSSION
A.

Elements of Disability Discrimination and Retaliation Claims Under the
ADA and NYCHRL
1. The ADA

The Complaint asserts two causes of action against Promed for discrimination and
retaliation under the ADA based on three theories -- (1) discriminatory discharge on account of
Plaintiff’s disability; (2) retaliatory discharge as a result of Plaintiff requesting a reasonable
accommodation and (3) discriminatory failure to provide reasonable accommodation to
Plaintiff’s disability.
a. Discriminatory Discharge and Retaliatory Discharge
Title I of the ADA prohibits discrimination in employment “against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees . . . and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). The ADA also prohibits retaliation against an individual who has “opposed
any act or practice made unlawful” by the ADA. 42 U.S.C. § 12203(a).
On a motion for summary judgment, discrimination claims under the ADA are analyzed
using the three-step burden-shifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Davis v. N.Y.C. Dep’t of Educ., 804 F.3d
231, 235 (2d Cir. 2015). For a claim of discriminatory discharge, first, a plaintiff must establish
6

a prima facie case by demonstrating that he was discharged under circumstances giving rise to an
inference of discriminatory intent. Second, if the Plaintiff is successful, “the employer must
offer through the introduction of admissible evidence a legitimate non-discriminatory reason for
the discharge; and [third,] the plaintiff must then produce evidence and carry the burden of
persuasion that the proffered reason is a pretext.” Cortes v. MTA N.Y.C. Tr., 802 F.3d 226, 231
(2d Cir. 2015); accord Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136 (2d
Cir. 2016). The Second Circuit has not resolved the question of whether but-for causation is
required for a claim of discriminatory discharge under the ADA, or whether mixed motives are
sufficient to prove causation. See Forrester v. Prison Health Servs., 651 F. App’x 27, 28 (2d
Cir. 2016); Bolmer v. Oliveira, 594 F.3d 134, 148 (2d Cir. 2010).
The analysis is the same for a claim of retaliatory discharge under the ADA, except the
intent issue is whether plaintiff was discharged on account of engaging in protected activity,
rather than whether plaintiff was discharged because of a qualifying disability. See Widomski v.
State Univ. of N.Y. (SUNY) at Orange, 748 F.3d 471, 476 (2d Cir. 2014) (citing Treglia v. Town
of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (ADA retaliation claims are subject to the
McDonnell Douglas burden-shifting framework); Treglia, 313 F.3d at 719 (to establish prima
facie case of retaliation under ADA, plaintiff must demonstrate that adverse employment action
occurred as a result of engaging in protected activity of which employer was aware). Requesting
a reasonable accommodation is protected activity under the ADA. See Weixel v. Bd. of Educ. of
City of New York, 287 F.3d 138, 149 (2d Cir. 2002).
“There is . . . an unsettled question of law in this Circuit as to whether a plaintiff must
show, in order to succeed on her ADA retaliation claim, that the retaliation was a ‘but-for’ cause
of the termination or merely a ‘motivating factor.’” Eisner v. Cardozo, 16-872-CV, 2017 WL

7

1103437, at *1 (2d Cir. Mar. 24, 2017) (citing Wesley-Dickson v. Warwick Valley Cent. Sch.
Dist., 586 F. App’x 739, 745 n.3 (2d Cir. 2014)).
b. Failure to Provide Reasonable Accommodation
Discrimination under the ADA includes the failure to make “reasonable accommodations
to the known physical . . . limitations” of an otherwise qualified employee, unless the employer
“can demonstrate that the accommodation would impose an undue hardship on the operation of
[its] business . . . .” 42 U.S.C. § 12112(b)(5)(A); see also Brady v. Wal-Mart Stores, Inc., 531
F.3d 127, 134 (2d Cir. 2008). When an employer is aware of an employee’s disability, the ADA
“envisions an interactive process” by which the employer and employee work together to assess
whether such accommodation is possible. See Stevens v. Rite Aid Corp., 851 F.3d 224, 231 (2d
Cir. 2017) (citation omitted). A reasonable accommodation may include “job restructuring, parttime or modified work schedules, reassignment to a vacant position, . . . appropriate adjustment
or modification of . . . policies . . . and other similar accommodations,” 42 U.S.C. §§ 12111(9),
but may “never involve the elimination of an essential function of a job.” Stevens, 851 F.3d at
230 (citation omitted).
To establish a prima facie case of discrimination for failure to provide a reasonable
accommodation under the ADA, a plaintiff must demonstrate that “(1) [she has] a disability
under the meaning of the ADA; (2) [the defendant, an entity covered by the ADA] had notice of
[her] disability; (3) with reasonable accommodation, [she] could perform the essential functions
of the job at issue; and (4) the [covered entity] has refused to make such accommodations.”
McMillan v. City of New York, 711 F.3d 120, 125–26 (2d Cir. 2013). If no reasonable
accommodation existed at the time of an employee’s dismissal, the employee cannot recover
based on her employer’s “failure to engage” in the “interactive process” contemplated by the

8

ADA. Stevens, 851 F.3d at 231 (citation omitted).
The third element of a reasonable accommodation claim raises three distinct issues -- (1)
what the essential functions of the job are; (2) whether an accommodation exists and (3) whether
the proffered accommodation is reasonable. In determining whether a job function is essential,
courts consider
the employer's judgment, written job descriptions, the amount of time spent on the
job performing the function, the mention of the function in a collective bargaining
agreement, the work experience of past employees in the position, and the work
experience of current employees in similar positions. Courts must give
considerable deference to an employer's judgment regarding what functions are
essential for service in a particular position, but no one listed factor will be
dispositive. Courts must conduct a fact-specific inquiry into both the employer's
description of a job and how the job is actually performed in practice.”
Id. at 229 (internal quotation marks and citations omitted); see also 29 C.F.R. § 1630.2(n)(3).
As for the other two issues, “the plaintiff bears the burden of proving . . . that an
accommodation exists that permits her to perform the job’s essential functions. If the plaintiff
meets that burden, the analysis shifts to the question whether the proposed accommodation is
reasonable; on this question the burden of persuasion lies with the defendant.” Jackan v. N.Y.
State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000) (internal citations omitted). In other
words, “the plaintiff bears the burdens of both production and persuasion as to the existence of
some accommodation that would allow [her] to perform the essential functions of [her]
employment.” McMillan, 711 F.3d at 126 (internal citation omitted). On the issue of whether
the proffered accommodation is reasonable, the plaintiff bears only the burden of production, and
the defendant bears the burden of persuasion to show that an accommodation is not reasonable,
“merging” with the affirmative defense that the proposed accommodation imposes an undue

9

hardship. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995).1
2. The NYCHRL
The Complaint asserts two claims against both Promed and UCP for discrimination under
the NYCHRL for discharging Plaintiff and discriminating against her in the conditions and
privileges of employment, including through the conduct of an employee or agent, as a result of
her disability.2
The NYCHRL prohibits employers and their agents from engaging in employment
discrimination on the basis of an employee’s “actual or perceived . . . disability.” N.Y.C. Admin.
Code § 8-107(1)(a). Employers and agents may not discharge, refuse to hire or otherwise
discriminate against disabled individuals. See id. Employers and agents must “make reasonable
accommodation to enable a person with a disability to satisfy the essential requisites of a job . . .
provided that the disability is known or should have been known by the [employer].” Romanello
v. Intessa Sanpaolo, S.p.A., 998 N.E.2d 1050, 1053 (N.Y. 2013) (quoting N.Y.C. Admin. Code §
8-107(15)(a)).
Employers are liable under the NYCHRL for discriminatory conduct of an employee or
agent who exercised managerial or supervisory responsibility. See N.Y.C. Admin. Code § 81

The McDonnell Douglas burden shifting test does not apply to a claim for failure to
accommodate. Cf. McMillan, 711 F.3d at 129 (finding that McDonnell Douglas analysis need
not be used when it is not helpful). The test logically addresses claims for discrimination under
ADA § 12112(a) -- i.e., claims alleging discrimination in the hiring, advancement, discharge,
compensation of an individual with a disability -- as the test focuses on the employer’s rationale
for an adverse employment action. See McDonnell Douglas Corp., 411 U.S. 792. However, the
claims based on § 12112(b) have their own intent requirements. The failure to accommodate
provision in § 12112(b)(5)(A) deals with state of mind implicitly by excusing the adoption of
accommodations that are unreasonable or would cause undue hardship. Applying the McDonnell
Douglas test to a failure to accommodate claim is not helpful and could introduce unwarranted
intent requirements into the analysis.
2
The Complaint asserts five causes of action, but the third and fourth causes of action are
identical and are therefore treated as a single cause of action.
10

107(13)(b). Employers are also liable for an employee or agent’s failure to reasonably
accommodate an employee’s disability. See id. § 8-107(13)(a).
“[I]n order to obtain summary judgment on an NYCHRL claim, a defendant must show
that ‘no jury could find defendant liable under any of the evidentiary routes: under the
McDonnell Douglas test, or as one of a number of mixed motives, by direct or circumstantial
evidence.’” Gioia v. Forbes Media LLC, 501 F. App’x 52, 56 (2d Cir. 2012) (summary order)
(quoting Bennett v. Health Mgmt. Sys., Inc., N.Y.S.2d 112, 116 (1st Dep’t 2011); see also
Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) (applying McDonnell Douglas burdenshifting analysis to NYCHRL claim).
To state a prima facie case of disability discrimination under the NYCHRL, a plaintiff
must demonstrate that “(1) [she] was a member of a protected class; (2) [she] was competent to
perform the job in question, or was performing the job duties satisfactorily; (3) [she] suffered an
adverse employment action; and (4) the action occurred under circumstances that give rise to an
inference of discrimination.” Spiegel, 604 F.3d at 80.
To state a prima facie claim for failure to accommodate a disability under the NYCHRL,
a plaintiff must demonstrate that “the employee suffers from a statutorily defined disability and
the disability caused the behavior for which the employee was terminated.” Jacobsen v. N.Y.C.
Health & Hosps. Corp., 11 N.E.3d 159, 166 (N.Y. 2014). For failure to accommodate claims
under the NYCHRL, the employer has the “pleading obligation to prove that the employee could
not, with reasonable accommodation, satisfy the essential requisites of the job.” Romanello, 998
N.E.2d at 1053 (citation omitted); see also Makinen v. City of New York, 857 F.3d 491, 2017 WL
2218716, at *3 n.3 (2d Cir. May 22, 2017). The NYCHRL defines “reasonable accommodation”
broadly to include any “such accommodation that can be made that shall not cause undue

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hardship in the conduct of the [employer's] business.” N.Y.C. Admin. Code § 8-102(18).3
The NYCHRL affords broader protections than the ADA, and dismissal of a plaintiff’s
ADA disability discrimination claim does not necessarily require dismissal of a plaintiff’s
identical NYCHRL claim. See Elmessaoudi v. Mark 2 Rest. LLC, No. 14 Civ. 4560, 2016 WL
4992582, at *8 (S.D.N.Y. Sept. 15, 2016).
B.

Promed’s Motion for Summary Judgment Against Plaintiff

Plaintiff has not adduced evidence to support a prima facie case of employment
discrimination by Promed for failure to accommodate under the ADA. Plaintiff argues that
because Promed failed to call UCP on her behalf to help her obtain a reasonable accommodation
from UCP, Promed is liable for failing to engage in an “interactive process by which employers
and employees work together to assess whether an employee’s disability can be reasonably
accommodated.”
First, accepting all facts and drawing all inferences in favor of Plaintiff, Promed’s failure
to call UCP does not constitute a reasonable accommodation within the meaning of the ADA. A
reasonable accommodation enables an employee to perform the basic functions of her job, and
can include job restructuring, modifications to a work schedule, reassignment to a vacant
position and other similar accommodations. See Stevens, 851 F.3d at 230; 42 U.S.C. § 12111(9).
While a phone call from Promed staff might have persuaded UCP to grant Plaintiff an
accommodation, a phone call itself would not have enabled Plaintiff to do her job as a
paraprofessional. Thus, Promed did not fail to accommodate Plaintiff when Promed failed to call
UCP on Plaintiff’s behalf.
3

For the same reasons explained in footnote 2, the McDonnell Douglas burden shifting test does
not apply to a claim for failure to accommodate under the NYCHRL. Cf. McMillan, 711 F.3d at
129 (finding that McDonnell Douglas analysis need not be used when it is not helpful).
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Second, Promed’s alleged failure to “engage in an interactive process” with respect to
finding Plaintiff an accommodation at UCP does not constitute an independent violation of the
ADA. See Stevens, 851 F.3d at 231 (citation omitted). To the extent that Plaintiff attempts to
rely upon Phillips v. City of New York, 884 N.Y.S.2d 369 (1st Dep’t 2009), to support the
conclusion that summary judgment in an ADA claim is inappropriate where there is a genuine
dispute as to whether an employer has engaged in the interactive process in good faith, such
reliance is misplaced. First, the case deals with the NYCHRL, rather than the ADA. Second, the
New York Court of Appeals has rejected that interpretation of Phillips. See Jacobsen, 11 N.E.3d
at 169 (“to the extent the Appellate Division's decision in Phillips can be interpreted as implying
that a good faith interactive process is an independent element of the disability discrimination
analysis under [the NYCHRL] which, if lacking, automatically compels a grant of summary
judgment to the employee . . ., we reject that notion.”). Instead, the employer’s “decision to
engage in or forgo an interactive process is but one factor to be considered in deciding whether a
reasonable accommodation was available for the employee's disability at the time the employee
sought accommodation.” Id. Where, as here, no accommodation was available, an employer’s
alleged failure to engage in the interactive process does not compel a finding for Plaintiff.
Third, accepting all facts and drawing all inferences in favor of Plaintiff, she has not
adduced evidence sufficient to show that Promed could have reasonably accommodated her by
assigning her to another Promed client. Promed hired Plaintiff as a paraprofessional to work at
UCP and had no other clients who used paraprofessionals. Plaintiff has adduced no evidence to
show that Promed could have placed her elsewhere. Consequently, Promed is entitled to
summary judgment on Plaintiff’s claims for failure to accommodate under the ADA.
Promed does not address (1) Plaintiff’s claim of retaliation in violation of the ADA, (2)

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Plaintiff’s claim that Promed discriminated against her by failing to accommodate her disability
under the NYCHRL or (3) Plaintiff’s claim that Promed effectively terminated her employment
with Promed in violation of the ADA and NYCHRL by failing to find her suitable employment
following her request for accommodation.4 Accordingly, Promed’s motion for summary
judgment is denied as to these claims. See Fed. R. Civ. P. 56(c)(1); Victory, 814 F.3d at 58–59.
C.

UCP’s Motion for Summary Judgment Against Plaintiff

Plaintiff asserts claims against UCP only under the NYCHRL. In support of its motion
for summary judgment against Plaintiff, UCP argues (1) that it was not Plaintiff’s employer and
therefore not subject to the NYCHRL’s employment discrimination provisions and (2) that
Plaintiff cannot establish a prima facie case of disability discrimination. These arguments are
unsuccessful.
1. UCP As Plaintiff’s Employer
UCP’s liability under the NYCHRL is premised on its status as Plaintiff’s employer. In
determining whether an entity is an employer under the NYCHRL, courts generally look to four
elements: “(1) the selection and engagement of the servant; (2) the payment of salary or wages;
(3) the power of dismissal; and (4) the power of control of the servant’s conduct.” Griffin v.
Sirva Inc., 835 F.3d 283, 291 (2d Cir. 2016) (internal citation omitted) (applying same test to
employment claim under the New York State Human Rights Law (“NYSHRL”)); see also Urena
v. Swiss Post Sols., Inc., 2016 WL 5173389, at *3 (S.D.N.Y. Sept. 21, 2016) (applying same test
to determine employer relationship for NYSHRL and NYCHRL).
4

Promed mentions Plaintiff’s NYCHRL claims only once in its Memorandum in Support of its
Motion for Summary Judgment, stating in the Conclusion that Plaintiff failed to make out a
prima facie case under the ADA, and also under “the New York City Civil Rights Law [sic]
which parallels the ADA.” However, as explained above, the burden of proof for a NYCHRL
claim is different and less demanding than for an ADA claim.
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An entity may be held liable for employment discrimination against a person whom it
does not technically employ if the entity “handle[s] certain aspects of the[] employer-employee
relationship jointly” with the employer of record. See Griffin, 835 F.3d at 292 (internal citation
omitted). “The joint employer doctrine has been applied to temporary employment or staffing
agencies and their client entities.” Haight v. NYU Langone Med. Ctr., Inc., No. 13 Civ. 4993,
2014 WL 2933190, at *11 (S.D.N.Y. 2014) (internal quotation marks and citation omitted); see
also, e.g., Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 146–48 (2d Cir. 2008)
(finding that hospital was joint employer when it directly supervised temporary worker and
otherwise exercised control over her).
To determine whether an entity can be considered a joint employer, courts evaluate
“whether the alleged [joint] employer (1) had the power to hire and fire the employees, (2)
supervised and controlled employee work schedules or conditions of employment, (3)
determined the rate and method of payment, and (4) maintained employment records.” See Velez
v. Sanchez, 693 F.3d 308, 326 (2d Cir. 2012) (citation omitted); see also Serv. Emps. Int’l Union,
Local 32BJ v. Nat’l Labor Relations Bd., 647 F.3d 435, 442 (2d Cir. 2011) (“[A]n essential
element of any joint employer determination is sufficient evidence of immediate control over the
employees . . . .” (citation omitted)).
Accepting all facts and drawing all inferences in Plaintiff’s favor, Plaintiff has submitted
evidence from which a reasonable jury could find that UCP jointly employed Plaintiff with
Promed. See Ling Nan Zheng v. Liberty Apparel Co., 617 F.3d 182, 185 (2d Cir. 2010) (in
FLSA action, question of whether defendant was plaintiff’s joint employer was properly before
the jury as mixed question of law and fact). UCP made the decisions to hire Plaintiff and not to
offer her a continued position after the summer break. UCP supervised and controlled Plaintiff’s

15

work schedule. It determined her assignments -- which student Plaintiff would assist, the hours
and dates she would be working -- and handled her requests for leave. When Plaintiff had
questions about her job functions and performance, she spoke to UCP supervisory staff. Based
on evidence that UCP both directly supervised Plaintiff and exercised control over her
employment, UCP could be found liable as a joint employer.
UCP also may be held liable under the loaned servant doctrine. The loaned servant
doctrine provides that “an employee directed or permitted to perform services for another
‘special’ employer may become that employer’s employee while performing those services.”
Haight, 2014 WL 2933190 at *10 (quoting Amarnare v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 611 F. Supp. 344, 349 (S.D.N.Y. 1984)). The key factor in determining whether the loaned
servant doctrine applies is “the ‘special’ employer’s exclusive right to supervise the employee’s
work during the period of temporary service.” Amarnare, 611 F. Supp. at 349.
Under the loaned servant doctrine, “a person whose salary is paid by one entity while
[her] services are engaged on a temporary basis by another is an employee of both entities.” Id.
(citation omitted) (finding that a temporary employee was employed by both her staffing agency
and the company where she worked because she was subject to the direction of the company in
work assignments, hours of service, and other usual aspects of an employee-employer
relationship and because the company had the right to discharge her and request a replacement
from the staffing agency if her work was unsatisfactory). Here, though Promed paid Plaintiff’s
salary, UCP supervised her, controlled her hours and work assignments, decided to hire her and
decided not to rehire her. Based on this evidence, a reasonable jury could find that UCP was
Plaintiff’s employer under either the joint employer doctrine or the loaned servant doctrine.

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2. Failure To Provide Reasonable Accommodation
Contrary to UCP’s argument, Plaintiff has submitted evidence from which a reasonable
jury could find that UCP failed to make reasonable accommodation for Plaintiff’s disability.
First, Plaintiff has adduced facts sufficient to show that she has a disability as defined in the
NYCHRL, specifically, cervical radiculopathy, a neck injury that prevents her from lifting. See
N.Y.C. Admin. Code § 8-102(16). Second, Plaintiff has submitted evidence that UCP had notice
of her disability. Plaintiff submitted multiple doctor’s notes and repeatedly requested
accommodation of her disability from UCP. Third, resolving all factual disputes in Plaintiff’s
favor, the evidence shows that Plaintiff could have continued in her work as a paraprofessional if
UCP had transferred her to a student with largely emotional rather than physical needs. Fourth,
UCP declined to make such a transfer.
UCP argues that lifting was an essential function of Plaintiff’s job as a paraprofessional
and that, because she could not perform this essential function, no accommodation was possible.
However, a reasonable jury could find that lifting was not an essential function of Plaintiff’s
position as a paraprofessional, as some students did not require lifting, and some had largely
emotional needs. Plaintiff has adduced sufficient evidence to demonstrate that she was capable
of caring for these students and that UCP could have transferred her to one of them but declined
to do so. Thus, UCP’s motion is denied as to Plaintiff’s claim for failure to accommodate under
the NYCHRL.
3. Decision Not To Hire Plaintiff for the New School Year
UCP also contends that summary judgment is appropriate on Plaintiff’s discrimination
claim because she cannot establish a prima facie case of discrimination based on UCP’s decision
not to invite her back as a paraprofessional when the new school year started in September 2013.

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“The burden of establishing a prima facie case is not onerous, and has been frequently described
as minimal.” Walsh v. N.Y. City Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016); accord Melman v.
Montefiore Med. Ctr., 946 N.Y.S.2d 27, 31–32 (1st Dep’t 2012). Plaintiff has adduced facts
sufficient to establish a prima facie case of discrimination based on UCP’s decision not to hire
her for the new school year.
First, as discussed above, Plaintiff was member of a protected class on account of her
disability under the NYCHRL at the time of her termination. See Zick v. Waterfront Comm’n of
N.Y. Harbor, No. 11 Civ. 5093, 2012 WL 4785703, at *8 (S.D.N.Y. Oct. 4, 2012) (“disability is
a NYCHRL-protected class”). Second, accepting Plaintiff’s evidence that lifting was not an
essential part of her job as a paraprofessional, Plaintiff was capable of performing the job in
question. Third, Plaintiff suffered an adverse employment action when UCP decided not to bring
her back as a paraprofessional for the new school year. Fourth, UCP’s decision not to bring her
back occurred within weeks of Plaintiff’s repeated and unsuccessful requests for a reasonable
accommodation from UCP, which gives rise to an inference that UCP did not ask Plaintiff back
on account of her disability. Cf., e.g., Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d
Cir. 2013) (in evaluating retaliation claim, three-week period from protected activity to
termination was “sufficiently short to make a prima facie showing of causation indirectly
through temporal proximity”). Based on this evidence, Plaintiff has made out a prima facie case
of discrimination.
UCP argues that Plaintiff did not suffer an adverse employment action as she was a
temporary employee whose assignment ended at the end of the school term in August 2013, and
she had no guarantee that she could return at the start of the new school year. However, nothing
in the record says that Plaintiff’s position was temporary, nor was she told that it was. UCP

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indicated that it would attempt to find Plaintiff a position following the summer recess. Drawing
all inferences in favor of Plaintiff, she has adduced sufficient evidence to make out a prima facie
case that her position was not temporary, and that when UCP declined to keep her on for the
following year, UCP materially and adversely changed her conditions of employment.
UCP does not try to establish step two of the McDonnell Douglas analysis -- that it had a
legitimate, non-discriminatory reason for discharging Plaintiff. Instead, UCP attempts to argue
that Plaintiff did not suffer an adverse employment action at all, given that she was only
temporarily assigned to UCP and not guaranteed to be re-assigned to UCP for the new school
year. However, as explained above, Plaintiff has adduced sufficient evidence to show that her
position was not temporary and that she suffered an adverse employment action. UCP’s motion
for summary judgment is denied as to Plaintiff’s disability discrimination claim for adverse
employment action.
D.

Promed’s Motion for Summary Judgment Against UCP

Promed also moves for summary judgment on UCP’s cross-claims for indemnification, or
in the alternative to sever the cross-claims from the main case. As “[c]laims for indemnification
do not generally ripen until a judgment in the underlying action is paid,” Cucchiara v.
Hollingsworth, No. 15 Civ. 314, 2016 WL 6068193, at *8 (S.D.N.Y. Oct. 14, 2016) (compiling
cases), Promed’s motion for summary judgment on the cross-claims is denied as premature. If
and when judgment is entered against UCP, the parties shall submit letter briefs articulating their
positions on whether the Court should exercise supplemental jurisdiction over UCP’s crossclaims.
CONCLUSION
For the foregoing reasons, Promed’s motion for summary judgment against Plaintiff is

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GRANTED in part and DENIED in part, and Plaintiff’s claims for retaliation under the ADA,
discrimination for failure to accommodate under the NYCHRL and discriminatory discharge
under the ADA and NYCHRL survive. UCP’s motion for summary judgment against Plaintiff is
DENIED, and Promed’s motion for summary judgment against UCP is DENIED.
The Clerk of Court is respectfully directed to close the motions at Docket No. 61 and
Docket No. 81.
Dated: June 19, 2017
New York, NY

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