Fatcheric v. Bartech Group, Inc. et al

Filing 67

OPINION & ORDER re: 54 MOTION for Summary Judgment filed by Dawnette Cooke, Bartech Group, Inc.: Plaintiff Margretta Fatcheric brings this employment discrimination action against her former employer The Bartech Group, Inc. (" Bartech") and former supervisor Dawnette Cooke (collectively, "Defendants"), alleging unlawful termination based on her disability, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law ("NYSHRL"), New York Executive Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8107 et seq. Defendants move for summary judgment dismissing this action. Defendants' motion for summary judgment dismissing this action is denied. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 54 and 62. (Signed by Judge William H. Pauley, III on 7/19/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MARGRETTA FATCHERIC,
Plaintiff,
-againstTHE BARTECH GROUP, INC., and
DAWNETTE COOKE, in her individual
capacity,
Defendants.

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15cv9702
OPINION & ORDER

WILLIAM H. PAULEY III, District Judge:
Plaintiff Margretta Fatcheric brings this employment discrimination action against
her former employer The Bartech Group, Inc. (“Bartech”) and former supervisor Dawnette
Cooke (collectively, “Defendants”), alleging unlawful termination based on her disability, in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the New
York State Human Rights Law (“NYSHRL”), New York Executive Law § 296 et seq., and the
New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8–107 et seq.
Defendants move for summary judgment dismissing this action. For the reasons that follow,
Defendants’ motion is denied.
BACKGROUND
Fatcheric worked as a Program Director at Bartech from March 2014 to January
2015. Bartech provides staffing to clients for functions, such as procurement, finance, and
human resources. (Defendants’ Statement of Material Facts (“DSMOF”), ECF No. 56 at ¶ 1.)
Bartech’s Program Directors manage client relationships and oversee service-delivery
consultants. (DSOMF ¶¶ 2–3.) The Program Director job description does not indicate that

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working on-site is a requirement of the position, but allows that Program Directors should build
“subject matter expertise within . . . the client’s environment.” (March 6, 2017 Declaration of
Joanne (“Seltzer Decl.”), ECF No. 57, Ex. R.) On-site expectations for Program Directors
depend on client needs—some work on-site every day, others work on-site two or three times per
week. (DSMOF ¶ 3.)
In March 2014, Fatcheric applied to be the Program Director for Citicorp North
America, Inc. (“Citi”). (DSMOF ¶ 2.) The position became available because her predecessor
abandoned his post. (April 7, 2017 Declaration of Russell Wheeler (“Wheeler Decl.”), ECF No.
59, Ex. 2 at 36.) Fatcheric interviewed for the position with Cooke, who would be her
supervisor, and discussed a weekly schedule for the position. (DSMOF ¶ 7.) Initially, Cooke
proposed a schedule in which Fatcheric would work three days per week on-site at Citi and two
days per week remotely. (DSMOF ¶ 7; Seltzer Decl., Ex. D, at 1.) However, Fatcheric testified
that Cooke also discussed the possibility that the on-site requirement could be reduced or
eliminated. (Wheeler Decl., Ex. 4, at 36.) Cooke’s notes, indicating that they discussed
“adjust[ing]” the “on-site demand” and about working “remote 5 days a week,” appear to
corroborate Fatcheric’s testimony. (Seltzer Decl., Ex. D, at 2, 4.) Internal, post-interview emails
also confirm those discussions, indicating that Fatcheric would be on-site “3 days per week and
maybe not always even that.” (Wheeler Decl., Ex. 3, at 5.)
When Fatcheric commenced her employment, she commuted to Citi’s office in
Manhattan three days per week. (DSMOF ¶ 8.) Her primary contacts at Citi were Robb Walton
and Janine Battaglia. (DSMOF ¶ 8.)
In April 2014, Fatcheric fell on her way to work, injuring her foot and knee.
(DSMOF ¶¶ 10–11.) As a result, she was unable to commute to work and eventually required

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surgery. (DSMOF ¶ 11.) Initially, Fatcheric refrained from telling Walton about her injury out
of fear that he would be “very upset” with her inability to work on-site. (DSMOF ¶ 11.) This
concern may have been premised on the fact that Walton wanted Fatcheric to be on-site until her
remote access was available. (DSMOF ¶ 10.) In fact, shortly after the injury, Cooke emailed her
supervisor, Brian Salkowski, explaining that Walton and Battaglia wanted Fatcheric replaced if
she was out “much beyond this week.” (DSMOF ¶ 12.) Cooke opined that Citi’s low tolerance
was due to the events surrounding the termination of Fatcheric’s predecessor. (Seltzer Decl., Ex.
I.) Once Fatcheric’s remote access was configured, she worked exclusively off-site until June
2014, when she returned to her original schedule. (DSMOF ¶ 13; Fatcheric Decl., ¶ 18.)
In August 2014, Fatcheric injured her other knee, which prohibited her from
working on-site until November 2014. (DSMOF ¶¶ 14–15.) During that period, the relationship
between Bartech and Citi was strained. (DSMOF ¶ 16.) As Fatcheric acknowledged, she was
not “100% . . . effective.” (DSMOF ¶ 16.) Citi characterized her work as “sloppy” and
Fatcheric responded with a “multi page diatribe” to the client that her Bartech supervisors
regarded as unprofessional. (DSMOF ¶ 16.) Then in November, Fatcheric had to “scramble” to
prepare a client presentation and was reminded by Cooke that she needed to prepare her
presentations in advance. (DSMOF ¶ 19.)
In December 2014, Fatcheric sustained a third injury on her way to work.
(DSMOF ¶ 20.) On December 9, Fatcheric informed Bartech and Citi that she would be out for
the remainder of the week and possibly the following week due to her injury. (DSMOF ¶ 23.)
When Battaglia learned of this absence, she told Cooke, “I think we do need to make a change. I
haven’t spoken to [Walton] yet….. but let’s chat on Friday.” (Plaintiff’s Statement of Material
Facts (“PSOMF”), ECF No. 58, ¶ 39.) That same day, Cooke recommended to Salkowski that

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Fatcheric be terminated. (DSOMF ¶ 24; PSOMF ¶ 40.) Salkowski authorized Fatcheric’s
termination that day, but the decision was not communicated to Fatcheric for several weeks.
(PSOMF ¶ 40.)
In the interim, Fatcheric provided Bartech with updates on her condition.
(PSOMF ¶ 47; e.g., Wheeler Decl., Ex. 18.) Cooke encouraged Fatcheric to use the time to
recover and not force an early return to work. (PSOMF ¶ 44 (“I have you off all week – so, use
that time!”).) On December 29, 2014, Fatcheric informed Cooke that she intended to return to
work on January 5, 2015. (DSOMF ¶ 21; Wheeler Decl. Ex. 5.) She made this decision despite
her doctors’ recommendation that she should not commute. (DSOMF ¶¶ 21, 22.) According to
Fatcheric, she intended to build her on-site presence back up to three days per week. (PSOMF
¶ 51.)
On January 5, 2015, Cooke terminated Fatcheric. (DSOMF ¶ 25.) After
Fatcheric’s termination, Bartech assigned an employee working at its Michigan headquarters as a
short-term replacement Program Director. (DSOMF ¶ 25.) Bartech required that employee to
commute from Michigan to New York and Florida as part of her Program Director
responsibilities at Citi. (DSOMF ¶ 30.)
Shortly after her termination, Fatcheric contacted her short-term disability
benefits provider to inform them that she was not ready to return to work. (DSOMF ¶ 28.) She
remained incapable of commuting or performing on-site work until at least April 2015.
(DSOMF ¶ 29.)
STANDARD
Summary judgment is appropriate only where all of the submissions taken
together “show that there is no genuine issue as to any material fact and that the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the
burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In making that determination, the Court must “construe all
evidence in the light most favorable to the nonmoving party, drawing all inferences and
resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir.
2010).
Once the moving party asserts facts showing that the non-movant’s claims cannot
be sustained, the opposing party must “set out specific facts showing a genuine issue for trial,”
and cannot “rely merely on allegations or denials” contained in the pleadings. Fed. R. Civ. P.
56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “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,” as “[m]ere conclusory allegations or denials cannot by themselves create a
genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d
159, 166 (2d Cir.2010) (citations omitted). In addition, self-serving, conclusory affidavits,
standing alone, are insufficient to create a triable issue of fact and defeat a motion for summary
judgment. See BellSouth Telecommunications, Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603,
615 (2d Cir. 1996).
DISCUSSION
I.

ADA and NYSHRL Claims
Employment discrimination claims under the ADA and the NYSHRL are subject

to the McDonnell Douglas burden-shifting standard. See McMillan v. City of N.Y., 711 F.3d
120, 125 (2d Cir. 2013) (ADA); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005)
(NYSHRL).

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Under this framework, a plaintiff bears the initial burden of establishing a prima
facie case of discrimination. Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014).
To establish a prima facie case, a plaintiff must show by a preponderance of the evidence that:
(1) her employer is subject to the ADA/NYSHRL; (2) she was disabled within the meaning of
the applicable statute; (3) she was otherwise qualified to perform the essential functions of her
job, with or without reasonable accommodation; and (4) she either suffered adverse employment
action because of her disability (wrongful termination theory), or her employer refused to make
reasonable accommodations(failure to accommodate theory). Parker v. Columbia Pictures
Indus., 204 F.3d 326, 332 (2d Cir. 2000) (“[F]ailure to make reasonable accommodation, when
the employee has satisfied the first three elements of his claim, amounts to discharge ‘because
of’ [her] disability.”); McMillan, 711 F.3d at 125; Rodal v. Anesthesia Grp. of Onondaga, P.C.,
369 F.3d 113, 118 (2d Cir. 2004); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010).1
If a plaintiff makes that initial showing, the burden shifts to the employer to
demonstrate undue hardship in making a reasonable accommodation, Stone v. City of Mount
Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (failure to accommodate claims), or evidence of a
legitimate non-discriminatory reason for the discharge, McBride v. BIC Consumer Prod. Mfg.
Co., 583 F.3d 92, 96 (2d Cir. 2009) (wrongful termination claims). “The defendant’s burden
also is light. The employer need not persuade the court that it was motivated by the reason it
provides; rather, it must simply articulate an explanation that, if true, would connote lawful
behavior.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998).

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Although the ADA, NYSHRL, and NYCHRL define disability differently, see Giordano v. City of N.Y.,
274 F.3d 740, 754 (2d Cir. 2001), they employ the same burden-shifting analysis.

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If a defendant makes that demonstration, “the plaintiff must then produce
evidence and carry the burden of persuasion that the proffered reason is a pretext.” McBride,
583 F.3d at 96.
a. Prima Facie Case
The crux of this action is whether working on-site was an essential function of the
Program Director position. Essential functions are “‘fundamental’ duties to be performed in the
position in question, but not functions that are merely ‘marginal.’” Stone, 118 F.3d at 97
(quoting 29 C.F.R. § 1630.2(n)(1) (1996)). “Although a court will give considerable deference
to an employer’s determination as to what functions are essential, there are a number of relevant
factors that may influence a court’s ultimate conclusion as to a position’s essential functions.”
McMillan, 711 F.3d at 126. Factors to consider include: “(i) [t]he employer’s judgment as to
which functions are essential; (ii) [w]ritten job descriptions . . . ; (iii) [t]he amount of time spent
on the job performing the function; (iv) [t]he consequences of not requiring the incumbent to
perform the function; (v) [t]he terms of a collective bargaining agreement; (vi) [t]he work
experience of past incumbents in the job; and/or (vii) [t]he current work experience of
incumbents in similar jobs.” Stone, 118 F.3d at 97 (citing 29 C.F.R. § 1630.2(n)). In the end,
“[c]ourts must conduct a ‘fact-specific inquiry’ to determine whether job duties are essential in
nature.” Daley v. Cablevision Sys. Corp., No. 12-CV-6316, 2016 WL 880203, at *5 (S.D.N.Y.
Mar. 7, 2016), aff’d, No. 16-991, 2017 WL 506977 (2d Cir. Feb. 6, 2017).
Construing the record in the light most favorable to Fatcheric, the question of
whether working on-site was an essential function of the Program Director position is in dispute.
For instance, although the Program Director job description states that a Program Director should
build “subject matter expertise within . . . the client’s environment,” it does not indicate that

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being physically present on-site is a requirement. (Seltzer Decl., Ex. R.) And Bartech had
different on-site expectations for its Program Directors depending on the client. (Seltzer Decl.,
Ex. A at 61–62.) Moreover, it appears that during her interview for the position Cooke may have
told Fatcheric that the on-site demand could be adjusted or eliminated, and her interview notes
reflect at least some discussion about Fatcheric working “remote 5 days a week.” (Seltzer Decl.,
Ex. D, at 2, 4; Wheeler Decl., Ex. 4, at 36.)
The facts surrounding Fatcheric’s predecessor or successor provide little clarity
on the issue. Her predecessor’s termination appears to have been precipitated by his
abandonment of his duties as a Program Director, not simply a failure to appear on-site. As
Cooke testified, he simply “stopped showing up for work . . . no-call, no-show.” (Wheeler Decl.,
Ex. 2 at 36.) And an internal email indicated that Fatcheric’s replacement was only able to be
on-site “a few days monthly.” (Wheeler Decl., Ex. 12.) These are material disputed facts that
preclude a determination by this Court of whether working on-site is an essential function of the
Program Director position.
b. Defendants’ Burden
Defendants argue that regardless of whether Fatcheric can state a prima facie
case, they meet their burden of either demonstrating an undue hardship in making a reasonable
accommodation, Stone, 118 F.3d at 97 (failure to accommodate claims), or offering evidence of
a legitimate non-discriminatory reason for the discharge, McBride, 583 F.3d at 96 (wrongful
termination claims).
First, Defendants contend that they were under no obligation to continue allowing
Fatcheric to work exclusively from home because “an employer is not required to accommodate
an individual with a disability by eliminating essential functions from the job.” Borkowski v.

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Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2d Cir. 1995). However, as discussed, it is not clear
that working on-site was an essential function of the Program Director position.
Defendants also contend that terminating Fatcheric was legitimate and nondiscriminatory because her continued inability to be on-site was impairing its relationship with
Citi. However, there are material facts in dispute surrounding Fatcheric’s termination. For
instance, on December 9, 2014, Bartech decided to terminate Fatcheric even though Battaglia
wanted to speak to Walton before finalizing Citi’s decision that a change needed to be made.
(See PSOMF ¶ 39.) Yet there are no subsequent communications from Citi concerning Walton’s
views in the record. In addition, on that same day in an internal email to Cooke, a Human
Resources Director opined that “the Customer is at the point that there have been too many gaps
in service delivery.” (Seltzer Decl., Ex. O.) But it was Cooke who recommended Fatcheric’s
termination, and a single email referencing Fatcheric’s absences is insufficient, particularly
where Fatcheric’s third injury was unlike the prior two. For her third injury, as opposed to her
first two injuries, Fatcheric indicated only that she would be out for a week and a half. (DSMOF
¶ 23.) And Citi may have been more willing to accommodate a short absence. Indeed, Fatcheric
provided multiple updates on her condition and was hopeful she could return to work a week
after Bartech made the decision to terminate her. (PSOMF ¶¶ 44, 47; see, e.g., Wheeler Decl.,
Ex. 18.) It appears that Fatcheric also indicated that she intended to return on-site by January 5,
2015, albeit on a more limited basis as she built back up to three days per week. (PSOMF ¶ 51.)
Ultimately, too many material facts are in dispute to warrant summary judgment.
II.

NYCHRL Claim
“[C]ourts must analyze NYCHRL claims separately and independently from any

federal and state law claims.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,

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109 (2d Cir. 2013). That is because, unlike the ADA or NYSHRL, “[u]nder the NYCHRL, in
order to survive summary judgment, a plaintiff need only adduce evidence ‘that she has been
treated less well than other employees because of her protected status.’” Rogers v. Bank of N.Y.
Mellon, No. 09-CV-8551, 2016 WL 4362204, at *8 (S.D.N.Y. Aug. 15, 2016). Nevertheless,
“[t]he NYS and NYC Human Rights Laws have very similar requirements with respect to the
ADA’s ‘essential functions’ test.” Davis v. City of N.Y. Health & Hosps. Corp., No. 08-CV0435, 2011 WL 4526135, at *6 (S.D.N.Y. Sept. 29, 2011); Kinneary v. City of N.Y., 601 F.3d
151, 158 (2d Cir. 2010). Because Defendants failed to establish their entitlement to summary
judgment under the ADA and NYSHRL, they are not entitled to summary judgment under the
more expansive NYCHRL. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 n.3 (2d Cir.
2013).
III.

Individual Claims
Fatcheric alleges Cooke is individually liable under the NYSHRL and NYCHRL

as an aider and abettor. An individual who “actually participates” in the discrimination is liable
as an aider and abettor. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995).
Although Cooke acted as the messenger by informing Fatcheric of her termination, she was also
the one who recommended that Fatcheric be terminated. (PSOMF ¶ 41.) Accordingly, because
Cooke may have actually participated in Fatcheric’s termination, summary judgment is
inappropriate. See Chapkines v. N.Y. Univ., No. 02-CV-6355, 2004 U.S. Dist. LEXIS 2990, at
*15 (S.D.N.Y. Feb. 25, 2004) (finding, for aiding and abetting purposes, that one defendant
“participated in [plaintiff’s termination] by recommending that plaintiff not be reappointed”);
Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 367 (S.D.N.Y. 2012) (“By

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supplying the intent and the complaints that may have led to Plaintiff’s termination, [defendant]
may have ‘actually participated in the conduct giving rise to the plaintiff’s claims.”).
CONCLUSION
Defendants’ motion for summary judgment dismissing this action is denied. The
Clerk of Court is directed to terminate the motions pending at ECF Nos. 54 and 62.
Dated: July 19, 2017
New York, New York
SO ORDERED:

_____________________________
WILLIAM H. PAULEY III
U.S.D.J.

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