Vega v. HSBC Securities USA et al
Filing
245
MEMORANDUM OPINION AND ORDER re: 233 MOTION to Reopen. filed by Richard Stryker, 227 MOTION to Reopen. filed by Richard Stryker, 210 MOTION for Summary Judgment . filed by HSBC Bank NA, Peter Foglio, HSBC BANK USA, N.A., Daniel Anniello, Shalini Guglani, Andrew Ireland. Accordingly, the plaintiff's motions to reopen discovery are denied. The Court has considered all of the arguments raised by the parties. To the extent not specifically address ed, the arguments are either moot or without merit. For the reasons stated above, the defendants' motion for summary judgment dismissing the claims against HSBC is granted as to the failure to accommodate and hostile work environment claims a nd is denied as to the discrimination and retaliation claims and claims of aiding and abetting and employer liability solely with respect to the claim of alleged demotion from a PRA to FA under the ADA, the NYSHRL, and the NYCHR. Any ADA claims a gainst the individual defendants are dismissed. The defendants' motion for summary judgment dismissing the claims against the individual defendants under the NYSHRL and the NYCHRL is granted as to all claims against the individual defendants Ireland, Anniello, and Foglio; it is granted as to the failure to accommodate and hostile work environment claims and denied as to the discrimination retaliation claims and claims of direct and aiding and abetting liability under the NYSHRL and th e NYCHRL against the individual defendant Guglani solely with respect to the claim of alleged demotion from PRA to FA. The plaintiff's motions to reopen discovery are denied. The Clerk is directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 8/31/2020) (ks)
Case 1:16-cv-09424-JGK Document 245 Filed 08/31/20 Page 1 of 56
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
RICHARD STRYKER,
16-cv-9424 (JGK)
Plaintiff,
- against -
MEMORANDUM OPINION
AND ORDER
HSBC SECURITIES (USA), ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Richard Stryker, brings this action pro se
against his former employers, HSBC Securities (USA), Inc., and
HSBC Bank USA, N.A. (collectively, “HSBC”) and individual
defendants, Andrew Ireland, Daniel Anniello, Shalini Guglani,
and Peter Foglio. The plaintiff alleges that he was disabled by
mental illness, that the defendants discriminated against him
because of his disability, failed to accommodate the plaintiff’s
mental illness, created a hostile work environment, and
retaliated against the plaintiff when he complained about the
discriminatory treatment. The plaintiff alleges violations of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., the New York State Human Rights Law (“NYSHRL”), N.Y.
Exec. L. § 290 et seq., and the New York City Human Rights Law
(“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq., against HSBC and
the individual defendants.
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The defendants move for summary judgment dismissing each of
the plaintiff’s claims. The plaintiff opposes the motion and has
filed two notices of motion to reopen discovery, asking the
Court to delay its ruling on the defendants’ motion for summary
judgment. For the reasons stated below, the defendants’ motion
is granted in part and denied in part, and the plaintiff’s
motions are denied.
I.
The standard for granting summary judgment is well
established. “The court shall grant summary judgment if the
movant shows 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); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.,
Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994). “[T]he trial
court’s task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are
any genuine issues of material fact to be tried, not to deciding
them. Its duty, in short, is confined at this point to issuefinding; it does not extend to issue-resolution.” Gallo, 22 F.3d
at 1224. The moving party bears the initial burden of “informing
the district court of the basis for its motion” and identifying
the matter that “it believes demonstrate[s] the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323. “Only
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disputes over 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 determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per
curiam)); see also Gallo, 22 F.3d at 1223. Summary judgment is
improper if any evidence in the record from any source would
enable a reasonable inference to be drawn in favor of the
nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d
29, 37 (2d Cir. 1994). If the moving party meets its burden, the
nonmoving party must produce evidence in the record and “may not
rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible.” Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
II.
The following facts are undisputed unless otherwise
indicated.
The plaintiff is a former employee of HSBC. Defs.’ 56.1
Stmt. ¶ 1. On September 8, 2015, the plaintiff began his
employment with HSBC as a Premier Relations Advisor (“PRA”),
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with a base salary of $75,000. Id. at ¶ 11. The plaintiff began
his employment with HSBC under the name “Christopher James
Vega.” 1
The individual defendants, Andrew Ireland, Daniel Anniello,
Shalini Guglani, and Peter Foglio, are employees of HSBC. Id. at
¶¶ 3-6. Guglani was the plaintiff’s supervisor from October 2015
until the plaintiff’s termination, and Anniello was Guglani’s
supervisor from early 2017 until Stryker’s termination. Id. at
¶¶ 3-4. Ireland was the Regional Head of Wealth at HSBC from the
plaintiff’s employment until January 2017, and Foglio was the
Wealth Sales Coach in the plaintiff’s district from the
plaintiff’s employment until his termination. Id. at ¶¶ 5-6.
The plaintiff’s responsibilities as a PRA required him to
provide financial services to “Premier clients,” who were
customers who met certain criteria set by HSBC, and to “acquire,
develop, advise, and retain a portfolio of Premier clients.” Id.
at ¶¶ 28-30; Declaration of Rhonda Toft (“Toft Decl.”) ¶ 12, Ex.
L. The job description of a PRA states that PRAs must “work as
part of an integrated branch management team” and “[c]omplete
all activity documentation to provide a record for performance
tracking.” Toft Decl., Ex. L. Each PRA must manage a portfolio
of clients initially assigned by HSBC and develop new clients
The plaintiff changed his name from “Christopher James Vega” to “Richard
Stryker” after his termination from HSBC. Defs.’ 56.1 Stmt. ¶ 7.
1
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from leads provided by HSBC management, branch personnel, and
the PRA’s own contacts. Defs.’ 56.1 Stmt. ¶ 31. The job
description states that PRAs are “assigned Premier Wealth
clients and are expected to seek opportunities to attract,
develop and retain these clients and expand the portfolio of
clients by providing wealth, bank . . . and personal lending
solutions.” Toft Decl. Ex. L. The plaintiff asserts that the
PRA’s primary responsibility is managing a portfolio of clients
assigned by HSBC. Pl.’s 56.1 Stmt. ¶ 31; Declaration of Richard
Stryker (“Stryker Decl.”) ¶ 19.
HSBC uses “Key Performance Indicators” (“KPIs”) – Activity
KPIs and Outcome KPIs, to evaluate the performance of PRAs.
Defs.’ 56.1 Stmt. ¶ 32. Activity KPIs include (1) Client
Appointments; (2) Financial Reviews; and (3) Needs Fulfilled,
whereas Outcome KPIs include (1) Net New Money; (2) Net Premier
Client Growth; and (3) Recurring & Income Growth. Id. at ¶ 34.
PRAs are required to submit client interactions through the
“Relationship Management Platform” (“RMP”), an internal
recordkeeping platform; HSBC tracks Activity KPIs solely based
on data entered into the RMP by PRAs. Id. at ¶¶ 35-38. HSBC
trained the plaintiff on the use of the RMP at the beginning of
his employment. Id. at ¶ 39.
The plaintiff began working at HSBC’s SoHo branch in
September 2015, and Guglani became the plaintiff’s supervisor in
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October 2015. Id. at ¶¶ 41-42. A month later, in November 2015,
Guglani transferred the plaintiff to HSBC’s flagship branch so
that the plaintiff could learn from more experienced PRAs and
become more familiar with HSBC’s system. Id. at ¶ 43. The
plaintiff states that up until his transfer, Guglani and Foglio
had not disciplined him in any way and that he was meeting or
exceeding the position’s requirements at the time. Pl.’s 56.1
Stmt. ¶ 43.
The plaintiff took a medical leave of absence from December
2015 to April 2016, but returned to work for a two-week period
from late January to early February 2016. Id. at ¶¶ 46-49;
Defs.’ 56.1 Stmt. ¶ 47. The plaintiff testified that as of
February 2016, HSBC was very understanding of his needs. Pl.’s
56.1 Stmt. ¶ 49; Declaration of C. Bryan Cantrell dated
September 23, 2019 (“Cantrell Decl.”), Ex. A (“Stryker Dep.”).
The plaintiff did not meet his Activity KPIs during the last
quarter of 2015, but the plaintiff’s performance was rated “Not
Applicable: Too Soon” for the quarter. Pl.’s 56.1 Stmt. ¶¶ 5051; Defs.’ 56.1 Reply Stmt. ¶¶ 50-51. The plaintiff states that
in February 2016, when the plaintiff was on leave, Guglani
emailed HR to discuss moving the plaintiff into a “Financial
Advisor” (“FA”) role upon the plaintiff’s return. Stryker Decl.
¶ 28, Ex. K.
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Despite the plaintiff’s knowledge that entering data into
the RMP was a job requirement, the plaintiff did not always
record interactions he had with his clients on the RMP,
acknowledging that he only “sometimes” did so. Stryker Dep. at
110-12, 152-53, 320. Partially to address this problem, Foglio
met with the plaintiff in May 2016, a month after the plaintiff
returned to work from his first leave of absence, to review the
plaintiff’s performance and retrain him on the RMP system, among
other things. Defs.’ 56.1 Stmt. ¶¶ 52-53. The plaintiff asserts
that he did input activity on the RMP, including 40 appointments
and 25 financial reviews in the second quarter of 2016. Pl.’s
56.1 Stmt. ¶ 40; Stryker Decl. ¶ 7, Ex. H.
The parties dispute whether the plaintiff properly used
Time Off Program (“TOP”) time. After the plaintiff’s return to
work in April 2016, the plaintiff took two TOP days. Defs.’ 56.1
Stmt. ¶¶ 54-55. At 7:32 a.m. on May 27, 2016 and 8:30 a.m. on
June 8, 2016, the plaintiff notified Guglani that he was using
TOP that day. Toft Decl. ¶¶ 18-19, Exs. T, U. Neither email
indicates that the TOP day was taken for purposes of an
emergency. The defendants argue that the TOP was improperly
scheduled; HSBC has a written company policy that “TOP time must
first be approved by your manager and scheduled at least by the
start of the business day for which you are using TOP, or in
advance, to the extent possible” and that employees may only use
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TOP with management approval “prior to TOP time being taken, to
ensure business needs and appropriate staffing levels are being
met.” Stryker Decl. Ex. N. The plaintiff states that these
situations were emergencies and that by notifying Guglani in the
morning of his need to take TOP, the plaintiff was properly
following the procedures for emergency situations. Pl.’s 56.1
Stmt. ¶¶ 54-55. After each of these instances, Guglani emailed
the plaintiff to discuss that TOP days must be planned, and the
impact of unplanned TOP days on the business, and Guglani
advised the plaintiff to contact Guglani or Ricardo in the event
of an emergency. Toft Decl. ¶¶ 18-19, Exs. T-U.
From May through July 2016, Guglani received feedback from
multiple sources related to the plaintiff’s underperformance,
including not calling clients after repeated reminders to do so,
being unprofessional to other employees in the office, and
arriving in the office after 11 a.m. or 12 p.m. Toft Decl.
¶¶ 20, 22, Exs. V, X. The plaintiff disputes the accuracy of the
substance of the feedback, and states that the feedback was
taken out of context, was an inaccurate reflection of workplace
conditions, and was given by individuals not trained to give
feedback. Pl.’s 56.1 Stmt. ¶¶ 56-59.
On July 25, 2016, Guglani gave the plaintiff a rating of
“Off Track” in the plaintiff’s 2016 mid-year review and issued
the plaintiff a Written Warning for unsatisfactory performance.
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Defs.’ 56.1 Stmt. ¶¶ 65-66. The performance review noted that
the plaintiff was “way below” expectations in generating
revenue, needed to understand “the value of contacting clients
with a sense of urgency,” and faced “[c]hallenges with process
and paperwork.” Toft. Decl. ¶ 23, Ex. Y. It also noted that even
with a pro-rated target number of client appointments and
documented conversations because the plaintiff had taken a leave
of absence, the plaintiff was “not even close” to meeting his
expectations. See id. The Written Warning noted that the
plaintiff had received coaching on core activity to help him
reach his outcome and activity KPIs on April 7, April 26, May
27, June 1, and June 18, 2016. Id. at ¶ 24, Ex. Z. However, the
plaintiff had failed to reach the outcome and activity KPI
minimum standards for his position as a PRA in the second
quarter. Specifically, the plaintiff had reached about 22% of
his appointments, which showed very little revenue results;
completed 25 financial reviews out of a minimum standard of 144;
and completed three needs fulfilled out of a standard of 60 per
quarter. Id. Among other things, the plaintiff needed to improve
by increasing appointments, communicating with partners and
clients in a timely manner, and documenting client interactions
daily on the RMP. Id.
Three days after the issuance of the Written Warning, on
July 28, 2016, the plaintiff wrote an email to Ireland, copying
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Michael Pain, his supervisor at the time and a former defendant
in the case, and Guglani, alleging “unfair treatment, harassment
and discrimination . . . based on protected status, disability
and a medical leave taken earlier [that] year.” Defs.’ 56.1
Stmt. ¶¶ 69-70; Toft Decl. ¶ 25, Ex. AA. The plaintiff states
that he first complained about disability discrimination as
early as April 22, 2016. Pl.’s 56.1 Stmt. ¶ 60. However, on
April 22, 2016, the plaintiff emailed Guglani to ask how to
engage with clients who were shared with other advisors and did
not mention disability discrimination. Stryker Decl., Ex. P.
Other emails to which the plaintiff refers also show that the
plaintiff emailed Guglani about different ways to increase his
case load and did not mention disability discrimination. Id.
The plaintiff’s internal complaint was referred for
investigation to Rhonda Toft, Vice President, Employee Relations
Specialist. Toft Decl. ¶¶ 1, 27. The plaintiff told Toft that
evidence of discrimination included having a smaller portfolio
than his peers; that his mid-year review had come only three
months after his leave of absence ended, and because three
months was not enough time to meet his goals, the review must
have been motivated by discriminatory reasons; and that Guglani
had made several comments about not giving the plaintiff a
bonus. Toft Decl. ¶ 27, Ex. BB. The plaintiff did not provide
Toft with any further evidence of his claims. Id. Toft noted in
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her report that Guglani explained that the reasons for the
relatively small size of the plaintiff’s client portfolio were
to allow the plaintiff to ramp up after his return and to avoid
overloading the plaintiff with a larger portfolio, which could
put other clients at risk of being improperly handled. Id.
Guglani stated that it was standard procedure for HSBC to
distribute an employee’s clients when the employee took leave
and that the plaintiff’s clients were not yet returned to him to
avoid disruption to the clients “due to [the plaintiff’s]
underperformance.” Id. Guglani identified several other
employees who took leave and were treated similarly. Id. After
conducting interviews with the plaintiff and Guglani, Toft
concluded her investigation and notified the plaintiff on August
18, 2016 that she found no evidence of discrimination due to his
leave of absence and that at no time was his leave of absence
blocked or denied. Id. Toft also concluded that the plaintiff
had “extremely low productivity,” that there was “an excessive
gap between actual production and goals,” and that he was
“clearly the lowest performing staff member under Ms. Guglani.”
Id.
In August 2016, other employees of HSBC reported to Guglani
instances of the plaintiff’s missing client appointments and
internal meetings due to unexpected or unapproved TOP; not
showing up for work or taking long intermittent breaks
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throughout the day with no communication; and not responding to
emails or calls of clients or other team members. Id. at ¶ 28,
Ex. CC. On August 26, 2016, the plaintiff took a second leave of
absence. Id. at ¶ 29, Ex. DD. During this leave of absence, on
December 6, 2016, the plaintiff commenced this lawsuit after
obtaining a Notice of Right to Sue from the Equal Employment
Opportunity Commission. Defs.’ 56.1 Stmt. ¶ 84; Second Amended
Compl. ¶ 76.
On February 2, 2017, the plaintiff reported to Guglani that
he was cleared by his healthcare providers to return to work on
a part-time schedule of 20 hours per week, consisting of five
hours a day from Monday through Thursday, with 10 hours at the
office and 10 hours at home. Toft Decl. ¶ 31, Ex. EE. The
plaintiff also indicated that the healthcare provider-mandated
work schedule could not be modified in any manner. Id. The
accommodation request was formally submitted on February 6, 2017
and was certified by the plaintiff’s psychologist. Cantrell
Decl. ¶ 12, Ex. K. The psychologist stated that the plaintiff
was suffering from “a major depressive episode that is part of a
long-term major depressive disorder.” Id. The psychologist noted
that depression can affect concentration as well as promote
procrastination out of fear of negative performance and/or
consequences. Id. The psychologist stated that a 20-hour
workweek that divides duties between home and office “should
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allow the employee to gradually readjust to the demands of his
job description.” Id.
HSBC soon responded that it could not grant the plaintiff’s
request for compliance reasons, because HSBC had a regulatory
obligation to supervise the plaintiff’s sale of securities
products and could not do so while the plaintiff worked from a
remote location. Toft Decl. ¶ 30. The plaintiff argues that HSBC
employees were able to perform significant portions of their
positions’ requirements from home, such as using mobile phones
to communicate with clients and accessing the intranet with
their laptops. Pl.’s 56.1 Stmt. ¶ 89; Stryker Decl. ¶ 61. As an
alternative, HSBC offered the plaintiff (1) a change in title
and role from PRA to FA; (2) change in work site from one
location to four locations; and (3) 20 hours a week in the
office, from Monday to Friday, 8:30 a.m. to 12:30 p.m. Stryker
Decl., Ex. Y. The plaintiff communicated over the next two weeks
via telephone and email with HSBC’s Human Resources staff and
reviewed HSBC’s proposal with his healthcare providers. Id. On
March 9, however, the plaintiff informed the defendants that he
would return to work on a full-time schedule on March 20,
pending doctor approval, and confirmed that he would not be
seeking the original accommodation of a reduced number of hours.
Id.
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The plaintiff voluntarily returned to work full-time on
March 20, 2017. Defs.’ 56.1 Stmt. ¶ 92; Toft Decl. ¶¶ 32-33, Ex.
FF. When he returned, the plaintiff was placed in an FA position
and he was assigned to four HSBC branches on a rotating weekly
schedule. Defs.’ 56.1 Stmt. ¶¶ 93, 101. The plaintiff states
that he was assigned to five branches. Pl.’s 56.1 Stmt. ¶ 101.
The parties vigorously dispute whether the change of position
from PRA to FA is considered a demotion. The defendants state
that the plaintiff was placed in an FA position with the same
base salary and bonus opportunities as a PRA, that FAs perform
similar functions and are in the same HSBC “global career band”
as PRAs, and that HSBC does not consider a job change within a
global career band to be a promotion or a demotion. Defs.’ 56.1
Stmt. ¶¶ 93-97. Because the plaintiff was on leave for a long
period of time, Guglani stated that she filled his position as
PRA at the 452 branch and that the FA position was the only
opportunity available in her market when the plaintiff returned
to work. Stryker Decl. Ex. A at 117-18. 2 In contrast, the
plaintiff argues that there were three other open PRA positions
at the time. Pl.’s 56.1 Stmt. ¶ 93. The plaintiff states that
being placed in an FA role was a demotion because FAs do not
manage or service banking clients and manage smaller accounts
Because some of the exhibits submitted with the papers do not have page
numbers, all citations to page numbers in the exhibits refer to the ECF page
number included in the file stamp at the top of each page.
2
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that generate smaller bonuses. Pl.’s 56.1 Stmt. ¶¶ 93-97. The
parties agree that the plaintiff’s base salary remained the same
and that in his new capacity as an FA, the plaintiff served more
than HSBC’s Premier clients and no longer carried non-securities
responsibilities. Id. at ¶¶ 93-100; Defs.’ 56.1 Reply Stmt.
¶¶ 93-100.
Four days after returning to work, on March 24, 2017, the
plaintiff requested a base salary raise from $75,000 to $100,000
from Anniello. Stryker Dep., 222:7 to 222:15; Cantrell Decl.
¶ 13, Ex. L. The plaintiff forwarded this email request to
Guglani. Cantrell Decl. ¶ 13, Ex. L. Guglani promptly denied the
plaintiff’s request. Defs.’ 56.1 Stmt. ¶ 104. Guglani then
emailed the plaintiff on April 6, 2017, reminding him of company
policies that TOP leaves must be planned unless in case of
emergency, that the plaintiff should inform Guglani of any
doctor’s appointments in advance, and that absences for medical
reasons may be covered under HSBC’s leave policy. Toft Decl.
¶ 34, Ex. GG. A day later, the plaintiff took an unscheduled day
off because he was not feeling well and used TOP. Id. at ¶ 35,
Ex. HH.
The plaintiff notified Guglani on April 17, 2017 that he
intended to apply for jobs elsewhere within HSBC and asked
Guglani for a positive recommendation. Id. at ¶ 36, Ex. II.
Guglani denied the request, citing continued performance and
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conduct issues, including the plaintiff’s poor attendance in
team huddles and collaboration, reporting late to work, lack of
communication with the team during work hours, low activity
levels, and missing client appointments due to taking unexcused
absences. Id.
On May 1, 2017, the plaintiff had a meeting with a client
at 11 a.m. at the Soho Branch, but told the banker at the branch
that “I’m not going to be in SoHo for the appt if he does come
in and wants to speak conf me in.” Stryker Decl. Ex. GG. The
plaintiff subsequently could not be reached by the banker when
the client arrived. Toft Decl. ¶ 37, Ex. JJ. The next day, HSBC
issued a Final Written Warning to the plaintiff. Defs.’ 56.1
Stmt. ¶¶ 109-111; Cantrell Decl. ¶ 14, Ex. M. The Final Written
Warning cited various reasons for corrective action, including
the plaintiff’s failure to attend daily morning huddles and
weekly collaboration meetings; to be responsive to his team
regarding his comings and goings, including extended absences at
lunchtime; taking many unplanned absences; completing only two
client appointments in his first 30 days of work as a Financial
Advisor; and other examples of unprofessional behavior. Cantrell
Decl. ¶ 14, Ex. M. It asked for immediate and sustained
improvement from the plaintiff. Id.
Two days later, on May 4, 2017, the plaintiff failed to
show up at his assigned branch, and Guglani attempted to reach
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the plaintiff by phone to ask why he was not present. Defs.’
56.1 Stmt. ¶ 113. The plaintiff responded by email that he felt
threatened, harassed and intimidated by Guglani’s behavior and
felt uncomfortable speaking with Guglani one on one. Toft Decl.
¶ 38, Ex. KK. Guglani emailed back to inquire why he was not at
his assigned branch. Id. Citing this incident as an immediate
defiance of the requirements of the Final Written Warning, HSBC
decided to terminate the plaintiff’s employment later that day
and planned to inform him of that decision in a meeting
scheduled for 4 p.m. Defs.’ 56.1 Stmt. ¶ 116. The plaintiff did
not show up at the 4 p.m. meeting; he left the branch shortly
after 3:50 p.m., when he was informed that the meeting was about
to take place. Id. at ¶¶ 119-20; Pl.’s 56.1 Stmt. ¶¶ 119-20. The
plaintiff said that he went to a different HSBC branch to finish
work for the day. Pl.’s 56.1 Stmt. ¶ 120. At that branch, he
sent an email to Guglani, Toft, Anniello, Ireland, Foglio, and
other HSBC employees with a 10-page response to the Final
Written Warning. Defs.’ 56.1 Stmt. ¶¶ 121-22; Pl.’s 56.1 Stmt.
¶¶ 121-22. He also sent a second email to Guglani and Toft
informing them that he would be out of the office the next day
to begin his Core Leave, which is a two-week period of leave
that HSBC requires all employees to take each year. Defs.’ 56.1
Stmt. ¶¶ 123-24; Pl.’s 56.1 Stmt. ¶¶ 123-24. In response, Toft
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sent the plaintiff a copy of the termination notice. Defs.’ 56.1
Stmt. ¶ 125.
III.
The plaintiff brings claims of disability discrimination,
failure to accommodate, retaliation, and hostile work
environment in violation of the ADA against HSBC and in
violation of the NYSHRL and the NYCHRL against all defendants. 3
The plaintiff also brings claims of aiding and abetting and
employer liability in violation of the NYSHRL and NYCHRL against
all defendants. The defendants move for summary judgment
dismissing all of the claims.
A. Claims against HSBC
1. Discriminatory Treatment Claims
The ADA makes it unlawful for an employer to discriminate
“against a qualified individual on the basis of disability.” 42
U.S.C. § 12112(a). The NYSHRL and the NYCHRL likewise prohibit
discrimination against an individual because of his disability.
See N.Y. Exec. Law § 296(1)(a); N.Y.C. Admin. Code § 8–
107(1)(a). Employment discrimination claims brought pursuant to
the ADA, the NYSHRL, and the NYCHRL are governed by the burdenIt is not clear from the complaint under which statutes and against which
defendants the plaintiff brings claims of failure to accommodate and hostile
work environment. Because courts should read the pleadings of a pro se
plaintiff liberally and interpret them to raise the strongest arguments that
they suggest, see McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), the
Court interprets the defendants’ pleadings to raise claims of failure to
accommodate and hostile work environment against HSBC under the ADA, and
against all defendants under the NYSHRL and the NYCHRL.
3
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shifting standard established for Title VII claims in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g.,
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013)
(ADA); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010)
(NYSHRL and NYCHRL). However, courts must analyze NYCHRL claims
separately from any federal and state law claims. See Mihalik v.
Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d
Cir. 2013).
a. Discriminatory Treatment Under the ADA and the NYSHRL
Under the McDonnell Douglas framework, the plaintiff must
first establish a prima facie case of discrimination. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). The ADA
and the NYSHRL require the same four elements to establish a
prima facie case. See Kinneary v. City of New York, 601 F.3d
151, 158 (2d Cir. 2010). The plaintiff must demonstrate that:
(1) his employer is subject to the statute, (2) he suffers from
a disability or is perceived to suffer from such a disability
within the meaning of the statute, (3) he could perform the
essential functions of the job with or without a reasonable
accommodation, and (4) he suffered an adverse employment action
because of his disability. See, e.g., McMillan, 711 F.3d at 125;
Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir.
2008). The plaintiff’s burden at the prima facie stage is
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“minimal.” Bucalo v. Shelter Island Union Free Sch. Dist., 691
F.3d 119, 128 (2d Cir. 2012).
If the plaintiff establishes a prima facie case, the burden
of production shifts to the defendants to articulate a
legitimate, nondiscriminatory reason for their adverse
employment action. See St. Mary’s, 509 U.S. at 506-07. The
defendants’ burden at this stage is “one of production, not
persuasion; it can involve no credibility assessment.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(internal quotation marks and citation omitted). Finally, if the
defendants make such a showing, the plaintiff then has an
opportunity to show that the proffered reason was not the true
reason for the employment decision. See St. Mary’s, 509 U.S. at
507-08. The “burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also Reeves,
530 U.S. at 143. Ultimately, the plaintiff must “prove that
discrimination was the but-for cause of any adverse employment
action.” Natofsky v. City of New York, 921 F.3d 337, 348 (2d
Cir. 2019); accord Corona v. Clarins U.S.A., Inc., No. 17-CV4438, 2019 WL 4393082, at *5 (S.D.N.Y. Sept. 12, 2019) (applying
the “but-for” analysis to both ADA and NYSHRL discrimination
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claims); Wellner v. Montefiore Medical Center, No. 17-CV-3479,
2019 WL 4081898, at *8 (S.D.N.Y. Aug. 29, 2019) (same).
The first and second elements of the plaintiff’s prima
facie case are satisfied. The defendants do not dispute that
HSBC is subject to the ADA. They also do not dispute that the
plaintiff suffered from a major depressive disorder, which was
“a mental impairment that substantially limit[ed] one or more
major life activities” of the plaintiff. 42 U.S.C.
§ 12102(1)(A).
The defendants argue that the plaintiff has failed to meet
the third and fourth elements of a prime facie case. They
contend that the plaintiff was not qualified to perform the
essential functions of his job, that he did not suffer an
adverse employment action, and that if an adverse employment
action was taken, it was not taken because of the plaintiff’s
disability.
To satisfy the third element, the plaintiff must
demonstrate that he was qualified to perform the essential
functions of his job. “The term ‘qualified,’ with respect to an
individual with a disability, means that the individual
satisfies the requisite skill, experience, education and other
job-related requirements of the employment position such
individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such
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position.” 29 C.F.R. 1630.2(m). A “reasonable accommodation may
include, inter alia, modification of job duties and schedules,
alteration of the facilities in which a job is performed,
acquisition of devices to assist the performance of job duties,
and, under certain circumstances, reassignment to a vacant
position.” McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92,
97 (2d Cir. 2009) (internal quotation marks and citations
omitted).
A plaintiff need only “make the minimal showing” that the
plaintiff possessed “the basic skills necessary for performance
of [the] job.” Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001)
(internal citation and quotation marks omitted). The third prong
of the McDonnell Douglas test should not be an opportunity for
the employer to require the plaintiff to “anticipate and
disprove the employer’s proffer of a legitimate, nondiscriminatory basis for its decision.” Id. at 696-97. In this
case, the employer expressed a belief that the plaintiff was
minimally qualified when it hired him, and thereafter when it
determined at his first review that it was too early to rate his
performance. This suggests that the plaintiff has met the
minimally qualified prong of the McDonnell Douglas test. See
also Hardekopf v. Sid Wainer & Son, No. 02-cv-3251, 2004 WL
2199502 at *6 (S.D.N.Y. Sep. 29, 2004).
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But the defendants contend that it became clear that he was
not able to perform the minimal requirements of his job. There
are issues of fact as to whether this is so.
The plaintiff argues that despite his disability, he was
able to perform the essential functions of his job with a
reasonable accommodation. In February 2017, in advance of the
plaintiff’s return from the second leave of absence, the
plaintiff requested a reduced work schedule of 20 hours per
week, evenly split on four workdays, with 10 hours spent working
from home. The plaintiff provided a note from his psychologist
that this accommodation “should allow the employee to gradually
readjust to the demands of his job description.” Cantrell Decl.
¶ 12, Ex. K. The defendants reasoned that regulatory
requirements regarding the supervision of the sales of
securities precluded the plaintiff’s ability to work from home
and HSBC provided an alternative proposal that the plaintiff
work a reduced schedule of 20 hours per week from the office and
that the plaintiff be placed in the FA role at different
branches. However, the plaintiff disputes this reasoning and
argues that there were significant portions of the job that
could be performed at home. Although the plaintiff voluntarily
returned to work on a full-time basis, his doctor had noted the
possibility of a reasonable accommodation that could allow the
plaintiff to meet the job’s demands. Because there are issues of
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fact as to whether the plaintiff could have performed the job
with an accommodation such as a part-time schedule, the
plaintiff has met the third element.
As to the fourth element, the plaintiff must also establish
that he was subjected to an adverse employment action under
circumstances giving rise to an inference of disability
discrimination within the meaning of the statute. Davis v.
N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (per
curiam). To qualify as an adverse employment action, the
employer’s action must be “materially adverse with respect to
the terms and conditions of employment” and “must be more
disruptive than a mere inconvenience or an alteration of job
responsibilities.” Id. (citation and quotation marks omitted).
Examples of materially adverse employment actions include
“termination of employment, a demotion evidenced by a decrease
in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities,
or other indices . . . unique to a particular situation.”
Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir.
2004) (citation omitted).
The plaintiff alleges that he suffered a variety of adverse
employment actions, including HSBC’s (1) failure to provide him
with an adequate client portfolio; (2) issuance of Written
Warnings; (3) decision to “demote” the plaintiff from PRA to FA;
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(4) refusal to increase the plaintiff’s compensation and provide
him with a good recommendation; (5) decision to transfer the
plaintiff to five smaller branches so that the plaintiff had to
commute to different locations each day; (6) failure to restore
promptly the plaintiff’s access to necessary software
applications upon his return to work; and (7) his eventual
termination. There is “no bright-line rule to determine whether
a challenged employment action is sufficiently significant to
serve as the basis for a claim of discrimination.” Davis, 804
F.3d at 235 (internal quotation marks and citations omitted).
Because it is disputed whether the change from a PRA and to a FA
role was a demotion and whether there were other PRA positions
open upon the plaintiff’s return to work, and whether the
defendants were required to provide the plaintiff with a client
portfolio or if the plaintiff was expected to develop his own
portfolio, these actions could constitute adverse employment
actions. It is also possible that the denial of a request for an
increase in compensation and a good recommendation were
discretionary and that the denial of a discretionary request is
an adverse employment action. See id. at 235-36 (denial of
discretionary bonus could be considered adverse employment
action). As the Court of Appeals explained, simply because an
employer’s action is discretionary does not mean that its
decision can be based on racial, religious, or disability
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discrimination. Id. The defendants do not contest that the
plaintiff’s eventual termination constituted an adverse
employment action.
At the prima facie stage, a strong showing of temporal
proximity between evidence of a plaintiff’s disability and an
adverse action can raise an inference of discrimination. See,
e.g., Hardekopf, 2004 WL 2199502, at *6; Forde v. Beth Israel
Med. Ctr., 546 F. Supp. 2d 142, 152 (S.D.N.Y. 2008) (noting that
temporal proximity on its own may be sufficient to establish an
inference of discrimination, but is insufficient to establish
pretext). The plaintiff took a second leave of absence from
August 2016 to March 2017. Immediately when he returned, many of
the adverse actions, such as the alleged demotion, change in
portfolio size, and denial of a request for increased
compensation and recommendation, took place. The closeness in
time between the defendant’s return from his second leave of
absence and the alleged adverse actions against him raises an
inference of discrimination to satisfy the fourth step of the
prima facie case.
Under the second step of the McDonnell Douglas framework,
HSBC has provided legitimate and non-discriminatory reasons for
all of the alleged adverse employment actions taken against the
plaintiff. The defendants’ legitimate, nondiscriminatory reasons
for the smaller size of the plaintiff’s client portfolio were to
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allow the plaintiff time to ramp up and to avoid overloading
him; this procedure was allegedly standard for all employees who
returned from leave.
Guglani, the plaintiff’s supervisor, explained that the
plaintiff returned to work as a FA and not a PRA because she had
filled the plaintiff’s position as a PRA when he was on leave,
and the FA position was the only opportunity available in her
market when the plaintiff returned to work.
The plaintiff’s history of poor performance prior to the
plaintiff’s return to work on March 20, 2017 provides
legitimate, nondiscriminatory reasons for why Guglani declined
to give the plaintiff a discretionary salary increase and
positive recommendation for another position. The plaintiff’s
performance issues were documented in an Initial Written
Warning, 2016 mid-year review, and various emails. At various
points throughout the plaintiff’s employment, Guglani discussed
with the plaintiff the importance of arriving to the office in a
timely fashion, communicating with other team members about the
plaintiff’s whereabouts, and abiding by TOP policies. The record
reflects that the plaintiff had a variety of attendance issues.
The plaintiff missed daily team huddles and weekly collaboration
meetings, arrived at work late, and left his post without
explanation or proper communication to other branch members. The
plaintiff also used TOP days, even in the event of emergencies,
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without always notifying his manager that such days were for
emergencies and without first seeking approval. In addition, the
plaintiff missed client appointments and did not contact clients
with urgency after repeated reminders to do so. The plaintiff
received a rating of “Off Track” in his 2016 mid-year review for
failing to meet minimum KPI activity, even when his target
number of client appointments was pro-rated because of his leave
of absence. The plaintiff’s Initial Written Warning also noted
that the plaintiff was required to input data into the RMP, was
trained on the usage of RMP at least five times, and received
repeated reminders to document his client interaction data on
the RMP. While the plaintiff argues that he did enter data into
the RMP in the second quarter of 2016, the plaintiff admitted in
his deposition that despite being aware of this requirement, he
only “sometimes” input data into the system.
Under the third step of McDonnell Douglas, the plaintiff
has raised issues of material fact as to whether one of the
defendants’ proffered reasons for the alleged demotion from PRA
to FA was a pretext for discrimination and was not the true
reason for the decision. The plaintiff argues that there were
three open PRA positions when he returned to work. Because this
is directly contradictory to what the defendants claim was the
reason for assigning the plaintiff to a FA position, the
plaintiff has raised genuine issues of material fact as to
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whether Guglani’s reason, namely that there were no other PRA
positions available, was the true reason for why the plaintiff
was allegedly demoted. See Kwan v. Andalex Group LLC, 737 F.3d
834, 847 (2d Cir. 2013) (finding that inconsistent explanations
for termination coupled with proximity to evidence of protected
conduct is sufficient to raise an issue of fact).
The remainder of the plaintiffs’ claims fail under step
three of the McDonnell Douglas test. The plaintiff has not
raised any evidence that the plaintiff’s reason for having a
smaller portfolio upon his return from leave was a pretext. The
decisions not to provide a recommendation and ultimately, to
terminate the plaintiff were amply supported by the record. The
record reflects that the defendants tried to accommodate the
plaintiff’s disability by offering a part-time work schedule.
The plaintiff took two disability leaves and the defendants
provided the plaintiff with multiple trainings, a mid-year
review and an Initial Written Warning, followed by a final
Written Warning, to try to correct various attendance issues,
lack of communication, underperformance, and the plaintiff’s
failure to input his activity into the RMP. Only after the
progressive increase in addressing ways to improve the
plaintiff’s performance did the defendants terminate the
plaintiff after he explicitly failed to show up to work, respond
to Guglani’s calls, and report to the meeting in May 2017. The
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plaintiff has not raised any material issue of fact that the
deficiencies in his performance were not the real reasons for
the other adverse employment actions that the defendants took
against him.
Accordingly, the plaintiff has raised issues of material
fact only as to whether the change in position from PRA to FA
was a demotion such that it was an adverse employment action and
whether the reason proffered by the defendants for his change in
position was a pretext. For all other claims, the plaintiff has
failed to show that but for his disability, the adverse
employment actions would not have occurred and no reasonable
jury could find that the defendants intentionally discriminated
against the plaintiff.
b. Discriminatory Treatment Under the NYCHRL
Courts should construe the NYCHRL “liberally for the
accomplishment of the uniquely broad and remedial purposes
thereof.” Mihalik, 715 F.3d at 109. “This task is not always
uncomplicated, however . . . [because there is] no specific
guidance concerning how the NYCHRL should be ‘construed
liberally’ and independently of state and federal law in its
particular applications.” Chauca v. Abraham, 841 F.3d 86, 87–88
(2d Cir. 2016) (emphasis in original). It is “unclear whether,
and to what extent the McDonnell Douglas burden-shifting
analysis has been modified for NYCHRL claims.” Mihalik, 715 F.3d
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at 110 n.8. However, “the plaintiff need only show that her
employer treated her less well, at least in part for a
discriminatory reason,” and an employer “is entitled to summary
judgment . . . only if the record establishes as a matter of law
that ‘discrimination play[ed] no role’ in its actions.” Id.
(emphasis in original); see also Corona, 2019 WL 4393082, at *6.
Although the NYCHRL has broad, remedial purposes, a
plaintiff must still establish a prima facie case of
discrimination under the NYCHRL. See Ya-Chen Chen v. City Univ.
of New York, 805 F.3d 59, 75 (2d Cir. 2015). If the plaintiff
establishes a prima facie case, the defendant has the
opportunity to offer non-discriminatory legitimate reasons for
its actions. If the defendant does so, summary judgment for the
defendant is appropriate “if no reasonable jury could conclude
either that the defendant’s reasons were pretextual, or that the
defendant’s reasons were not its sole basis for taking action,
and that its conduct was based at least in part on
discrimination.” Id. at 76 (internal quotation marks and
citations omitted).
The more liberal standard of the NYCHRL does not alter the
conclusion that the defendants offered non-discriminatory
legitimate reasons for declining to provide a recommendation for
the plaintiff, providing a smaller portfolio size upon the
plaintiff’s return from leave, and terminating the plaintiff. No
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reasonable jury could find that their reasons were pretextual or
that discrimination played any role in the actions the
defendants took. However, because a jury could conclude that the
defendant’s reason for changing the plaintiff’s position from
PRA to FA was not the sole reason, or was a pretext for
discrimination, the defendant’s motion for summary judgment is
denied with respect to that claim of disability discrimination
and granted with respect to all other claims of disability
discrimination under the NYCHRL.
Accordingly, the defendants’ motion for summary judgment
dismissing the plaintiff’s disability discrimination claims
against HSBC under the ADA, the NYSHRL, and the NYCHRL regarding
the plaintiff’s alleged demotion from PRA to FA is denied. The
defendants’ motion for summary judgment dismissing all the
plaintiff’s other claims for disability discrimination against
HSBC under the ADA, the NYSHRL, and the NYCHRL is granted.
2. Failure to Accommodate Claims
Under the ADA, the NYSHRL, and the NYCHRL, a failure to
accommodate claim is a theory of discrimination analyzed under
the McDonnell Douglas burden-shifting framework. See 42 U.S.C.
§ 12112(b)(5)(A); N.Y. Exec. L. 296(3); N.Y.C. Admin. Code § 8–
107(1)(a); see also Nieblas-Love v. New York City Hous. Auth.,
165 F. Supp. 3d 51, 72-73 (S.D.N.Y. 2016). To establish a prima
facie case based on failure to accommodate, a plaintiff must
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show “that (1) plaintiff is a person with a disability under the
meaning of [the relevant statute]; (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.” Rodal v. Anesthesia Grp. of Onondaga,
P.C., 369 F.3d 113, 118 (2d Cir. 2004) (ADA); see Vangas v.
Montefiore Med. Cntr., 823 F.3d 174, 180 (2d Cir. 2016)
(NYSHRL); Gaughan v. Rubenstein, 261 F. Supp. 3d 390, 419
(S.D.N.Y. 2017) (NYCHRL).
The plaintiff has failed to satisfy the fourth element of a
prime facie case of failure to accommodate.
a. Failure to Accommodate Claims Under the ADA and the NYSHRL
Under the ADA and the NYSHRL, an employer is not required
to provide a perfect accommodation or the accommodation most
strongly preferred by the employee, but is required to provide
an effective reasonable accommodation. Noll v. Int’l Bus.
Machines Corp., 787 F.3d 89, 94 (2d Cir. 2015); see also
Allen v. A.R.E.B.A. Casriel, Inc., No. 15-CV-9965, 2017 WL
4046127, at *8 (S.D.N.Y. Sept. 12, 2017). Where an employer has
taken or offered measures to accommodate a disability, “the
employer is entitled to summary judgment if, on the undisputed
record, the existing accommodation is ‘plainly reasonable.’”
Noll, 787 F.3d at 94. To determine the appropriate reasonable
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accommodation, both the employer and employee must participate
in the accommodation process; the employer incurs liability only
when it is responsible for the breakdown of that process.
Thompson v. City of New York, No. 03-CV-4182, 2006 WL 2457694,
at *4 (S.D.N.Y. Aug. 10, 2006), report and recommendation
adopted, No. 03-CV-4182, 2006 WL 6357978 (S.D.N.Y. Sept. 11,
2006), aff’d sub nom. Thompson v. New York City Dep’t of Prob.,
348 F. App’x 643 (2d Cir. 2009).
The plaintiff cannot show that under the ADA and NYSHRL,
the defendants were responsible for a breakdown of the process
of determining a reasonable accommodation. After the plaintiff
sought to return to work on a part-time basis, with half of his
time spent working from home, HSBC proposed that the plaintiff
return on the same part-time basis but without working from
home. The parties then communicated over the next two weeks by
telephone and email and engaged in an interactive process where
the plaintiff was able to review the defendants’ proposal with
his healthcare providers. However, the plaintiff voluntarily
returned to work on a full-time basis without pursuing his
request for a part-time work schedule. Because the plaintiff
voluntarily chose to return to work without seeking his
accommodation, the plaintiff has failed to show that the
defendants were responsible for the breakdown of any
discussions. Moreover, for the same reasons discussed above, the
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plaintiff has failed to show that the reasons offered by the
defendants for any adverse employment action was a pretext for
discrimination.
b. Failure to Accommodate Claims Under the NYCHRL
Under the NYCHRL, the employer also has a duty to engage in
an interactive process aimed at reaching a reasonable
accommodation. LeBlanc v. United Parcel Serv., No. 11-CV-6983,
2014 WL 1407706, at *18 (S.D.N.Y. Apr. 11, 2014). Under the
NYCHYRL, “reasonable accommodation” means broadly any “such
accommodation that can be made that shall not cause undue
hardship in the conduct of the [employer’s] business.” N.Y.C.
Admin. Code § 8-102(18). The NYCHRL presumes all accommodations
to be reasonable until proven otherwise; thus, the employer
bears the burden of proving that the accommodation was overly
burdensome or that the plaintiff could not perform the job even
with a reasonable accommodation. LeBlanc, 2014 WL 1407706, at
*18; see also Lazzari v. New York City Dep’t of Parks &
Recreation, 751 F. App’x 100, 103 (2d Cir. 2018).
HSBC has shown that it is entitled to summary judgment on
the plaintiff’s claim of failure to accommodate under the
NYCHRL. HSBC explained why the plaintiff’s proposal for working
part-time at home was not reasonable and offered an alternative
accommodation of part-time work at the office. The plaintiff
ultimately showed the reasonableness of working at the office
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when he did not pursue his alternative request for an
accommodation and voluntarily returned to work at the office on
a full-time basis. Under the circumstances, the plaintiff has
failed to show that HSBC failed to offer a reasonable
accommodation.
Accordingly, the defendants’ motion for summary judgment
dismissing the plaintiff’s failure to accommodate claims against
HSBC under the ADA, the NYSHRL, and the NYCHRL is granted.
3. Retaliation Claims
The ADA, the NYSHRL, and the NYCHRL prohibit an employer
from retaliating against an employee for opposing discriminatory
conduct prohibited by the statutes. See 42 U.S.C. § 12203(a);
N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8–107(7). Claims
under the ADA and the NYSHRL statutes are analyzed under the
same three-part McDonnell Douglas framework that governs the
plaintiff’s discrimination claims, although claims under the
NYCHRL require a more liberal analysis. See, e.g., Fox v. Costco
Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (ADA and
NYSHRL); Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp.
2d 349, 361 (S.D.N.Y. 2012) (NYSHRL and NYCHRL).
a. Retaliation Claims Under the ADA and the NYSHRL
To establish a prima facie case of retaliation under the
ADA and the NYSHRL, the plaintiff must show that (1) he
participated in a protected activity, (2) the employer was aware
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of that activity, (3) the employer took an adverse employment
action against the plaintiff, and (4) there was a “causal
connection” between the protected activity and the adverse
employment action. Treglia v. Town of Manlius, 313 F.3d 713, 719
(2d Cir. 2002). In the context of retaliation claims, adverse
employment actions include any actions that “could well have
dissuaded a reasonable employee in his position from complaining
of unlawful discrimination.” Davis-Garett v. Urban Outfitters,
Inc., 921 F.3d 30, 43-44 (2d Cir. 2019) (citation omitted).
The plaintiff has established the first three elements of
his prima facie case. For the first element, “[e]mployees engage
in protected activity when they have a good faith, reasonable
belief that they have made a complaint opposing an employment
practice made unlawful by . . . the ADA.” Salas v. New York City
Dep’t of Investigation, 298 F. Supp. 3d 676, 685 (S.D.N.Y. 2018)
(citation and quotation marks omitted); see also
Woldeselassie v. Am. Eagle Airlines/Am. Airlines, No. 12-CV07703, 2015 WL 456679, at *8 (S.D.N.Y. Feb. 2, 2015) (discussing
protected activities under the ADA and the NYSHRL). The
plaintiff initially complained to the defendants about
disability discrimination on July 28, 2016 and initiated this
lawsuit in December 2016. These activities constitute protected
activities under the ADA and the NYSHRL. Second, the defendants
were aware of the plaintiff’s complaint and lawsuit. Third, the
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plaintiff alleges that in retaliation to his complaint and
lawsuit, the defendants took substantially the same adverse
actions against him as he alleged in his discrimination claim
under the ADA and NYSHRL. Under the broader definition of
adverse employment action for retaliation claims, nearly all of
the plaintiff’s allegations could qualify as adverse employment
actions.
The plaintiff argues that the temporal proximity between
his protected activities and adverse employment actions against
him demonstrate causation. While a plaintiff “can indirectly
establish a causal connection to support a discrimination or
retaliation claim by showing that the protected activity was
closely followed in time by the adverse employment action,”
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010), the temporal proximity must be “very close.” Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). Courts have
found that one year was “too long a period of time for a jury to
be able to infer a causal connection,” Natofsky, 921 F.3d at
353, and that “[s]ix months between protected activity and
discharge is well beyond the time frame for inferring
retaliatory causation.” Yarde v. Good Samaritan Hosp., 360 F.
Supp. 2d 552, 562 (S.D.N.Y. 2005).
The plaintiff has failed to show a causal connection
between the protected activity and many of the adverse
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employment actions, namely, his client portfolio size, Written
Warnings, refusal to increase compensation, and termination. The
plaintiff first complained about discrimination in July 2016
only after he was given a Written Warning based on his poor
performance. However, the defendants still allowed the plaintiff
to take a second leave of absence from August 2016 until March
2017. In December 2016, when the plaintiff was on leave, he
filed this lawsuit. The defendants did not terminate the
plaintiff until May 2017, nearly one year after he initially
complained about discriminatory conduct and five months after he
filed the current lawsuit.
Furthermore, the plaintiff had a history of performance and
attendance issues, which the defendants had already documented
and notified the plaintiff of in emails, a mid-year review, and
an Initial Written Warning before the plaintiff made his initial
complaint in July 2016. “[W]here the adverse action was already
ongoing at the time of the protected activity, or is very
similar to another adverse action that was taken before the
protected activity, with no other change in relevant
circumstances, logic precludes any inference of causation.”
Young v. Westchester Cty. Dep’t of Soc. Servs., 57 F. App'x 492,
495 (2d Cir. 2003); see also Hazelwood v. Highland Hosp., 763 F.
App’x 60, 63 (2d Cir. 2019) (“Where timing is the only basis for
a claim of retaliation, and gradual adverse job actions began
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well before the plaintiff had ever engaged in any protected
activity, an inference of retaliation does not arise.”) (quoting
Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d
Cir. 2001)); Mucciarone v. Initiative, Inc., No. 18-CV-567, 2020
WL 1821116, at *14 (S.D.N.Y. Apr. 10, 2020) (collecting cases).
The defendants’ actions against the plaintiff after his
complaint were the same as conduct before his complaint; the
defendants continued to offer training and discuss the
plaintiff’s obligations to enter data into the RMP system,
discuss the importance of receiving approval for taking TOP,
explain that the plaintiff needed to communicate with his team
as to his whereabouts, arrive to work on time, and increase
communication and outcomes with his clients. Even after the
plaintiff complained about discrimination he was facing because
of his disability and medical leave, the defendants permitted
him to take a second leave of absence. While the plaintiff’s
termination was different in kind from prior actions involving
the plaintiff, it was in direct response to his failure to abide
by the final warning, which was itself the culmination of
measures which had begun before the plaintiff complained about
alleged discrimination.
Moreover, for substantially the same reasons as stated
above with respect to the plaintiff’s disability discrimination
claims, the plaintiff has failed to show that the defendants’
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legitimate reasons for the plaintiff’s smaller client portfolio
size, for issuing Written Warnings, for refusing to increase
compensation or provide a recommendation, and for terminating
the plaintiff, were a pretext for discrimination, as required
under the final steps of the McDonnell Douglas analysis.
However, changing the plaintiff’s role from PRA to FA
occurred immediately after the plaintiff returned to work such
that the temporal proximity between the adverse action and
protected activity creates an inference of a causal connection.
Although the defendant states that the reason the plaintiff was
placed in an FA position was because there were no other
positions available, the plaintiff has raised an issue of
material fact as to whether there were three other PRA positions
open at the time. Accordingly, the defendants’ motion for
summary judgment is denied as to the plaintiff’s retaliation
claim against HSBC under the ADA and NYSHRL, solely with respect
to the change in the plaintiff’s position from PRA to FA. The
motion to dismiss the other claim of retaliation against HSBC is
granted.
b. Retaliation Claims Under the NYCHRL
“[T]he retaliation inquiry under the [NYCHRL] is ‘broader’
than its federal counterpart.” Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (citing
Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 34 (App.
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Div. 2009)). “[T]o prevail on a retaliation claim under the
NYCHRL, the plaintiff must show that [he] took an action
opposing [his] employer’s discrimination, and that, as a result,
the employer engaged in conduct that was reasonably likely to
deter a person from engaging in such action.” Mihalik, 715 F.3d
at 112 (internal citation omitted).
Applying a more lenient standard, the plaintiff’s
retaliation claim under the NYCHRL for the adverse employment
actions of his client portfolio size, Written Warnings, refusal
to increase compensation, and termination, also fails because it
suffers from the same defects as his retaliation claim under the
ADA and the NYSHRL. Because the plaintiff’s performance issues
were present before his protected activities began and because
the defendants disciplined the plaintiff progressively, the
plaintiff has not satisfied his burden under the NYCHRL to
demonstrate that retaliation was a motivating factor in these
adverse employment actions.
However, because there is a disputed material fact under
the stricter standard applicable under the ADA and the NYSHRL,
the plaintiff has also established a genuine issue of material
fact on his retaliation claim related to the adverse action of
changing the plaintiff’s role from PRA to FA. Therefore, the
defendants’ motion for summary judgment dismissing the
plaintiff’s retaliation claims under the NYCHRL is denied solely
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with respect to the plaintiff’s change of position from PRA to
FA and granted with respect to all other claims of retaliation
under the NYCHRL.
Accordingly, the defendants’ motion for summary judgment
dismissing the plaintiff’s retaliation claims against HSBC under
the ADA, the NYSHRL, and the NYCHRL regarding the plaintiff’s
alleged demotion from PRA to FA is denied. The defendants’
motion for summary judgment dismissing all the plaintiff’s other
claims against HSBC for retaliation under the ADA, the NYSHRL,
and the NYCHRL is granted.
4. Hostile Work Environment Claims
a. Hostile Work Environment Claims Under the ADA and the
NYSHRL
A hostile work environment claim is cognizable under the
ADA and the NYSHRL. See Fox, 918 F.3d at 73-74 (ADA); Viruet v.
City of New York, No. 16-CV-8327, 2019 WL 1979325, at *17
(S.D.N.Y. May 3, 2019) (standard for demonstrating a hostile
work environment the same under the ADA and NYSHRL). To succeed
on a hostile work environment claim, the plaintiff must show
that “(1) that the harassment was ‘sufficiently severe or
pervasive to alter the conditions of [his] employment and create
an abusive working environment,’ and (2) that a specific basis
exists for imputing the objectionable conduct to the employer.”
Fox, 918 F.3d at 74 (quoting Alfano v. Costello, 294 F.3d 365,
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373 (2d Cir. 2002)). Furthermore, the workplace must be “so
severely permeated with discriminatory intimidation, ridicule,
and insult that the terms and conditions of [the employee’s]
employment were thereby altered.” Alfano, 294 F.3d at 373.
Courts look to “the totality of the circumstances to determine
whether a plaintiff has met this burden, including proof of the
frequency of the discriminatory conduct; its severity; whether
it [was] physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interfere[d]
with [the plaintiff’s] work performance.” Fox, 918 F.3d at 74
(internal quotation marks and citation omitted); see also
Berger v. New York City Police Dep’t, 304 F. Supp. 3d 360, 373
(S.D.N.Y. 2018).
The plaintiff cannot meet the standard under the ADA and
the NYSHRL. The plaintiff states that he felt threatened,
harassed, and intimidated by Guglani. However, Guglani’s
behavior as the plaintiff’s supervisor, including providing him
Written Warnings and discussions about his underperformance, are
not abusive or hostile. “Legitimate reprimands by an employer
are not abuse. Nor are the disciplinary actions taken against
[the plaintiff] in response to complaints . . . evidence” of
hostile work environment. Fox, 918 F.3d at 75. Furthermore, the
defendants allowed the plaintiff to take two leaves of absence
within the plaintiff’s first year of employment and provided the
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plaintiff with multiple different types of training and feedback
upon his return. There is no evidence of physically threatening
or humiliating actions against the plaintiff. And, unlike in
Fox, there is no evidence that co-workers engaged in ongoing and
pervasive comments mocking the plaintiff’s disability. For the
reasons discussed above, the plaintiff has also not shown that
any of the actions taken against him were based on his
disability.
b. Hostile Work Environment Claims Under the NYCHRL
The standard for establishing a hostile work environment is
more permissive under the NYCHRL, and requires a plaintiff to
demonstrate only “by a preponderance of the evidence that [he]
has been treated less well than other employees because of [his
disability].” Berger, 304 F. Supp. 3d at 373 (internal quotation
marks omitted). The plaintiff points to no evidence supporting
his claim that he was treated less well than other similarlysituated employees because of his disability. For example, the
plaintiff has not shown that giving employees returning from
leave a smaller portfolio was anything other than standard
procedure, to allow employees time to ramp up their activity.
Accordingly, the defendants’ motion for summary judgment
dismissing the plaintiff’s hostile work environment claims
against HSBC under the ADA, the NYSHRL, and the NYCHRL is
granted.
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5. Other State and Municipal Law Theories of Liability
The plaintiff also alleges that HSBC should be held liable
under an aiding and abetting theory of liability in violation of
the NYSHRL and the NYCHRL and under a theory of employer
liability in violation of the NYCHRL.
The NYSHRL makes it unlawful for an employer to
discriminate on the basis of disability. See N.Y. Exec. Law
§ 296(1). The NYSHRL also makes it “an unlawful discriminatory
practice for any person to aid, abet, incite, compel or coerce
the doing of any of the acts forbidden under this article, or to
attempt to do so.” N.Y. Exec. Law § 296(6).
The NYCHRL also supports claims for aiding and abetting,
which are “susceptible to the same standard as under the NYSHRL,
as the language of the two laws is virtually identical.”
Schanfield v. Sojitz Corp. of Am., 663 F. Supp. 2d 305, 344
(S.D.N.Y. 2009) (internal quotation marks and citation omitted)
(collecting cases). The NYCHRL also holds employers liable for
its employee’s or agent’s unlawful discriminatory conduct. See
N.Y.C. Admin. Code § 8-107(13).
Because the plaintiff has raised genuine issues of material
fact as to whether HSBC and its employees discriminated and
retaliated against the plaintiff for engaging in protected
activity by allegedly assigning him to an FA position rather
than a PRA position, the plaintiff’s claims of aiding and
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abetting liability and employer liability against HSBC cannot be
decided on this motion for summary judgment. The defendants’
motion for summary judgment dismissing these ancillary claims
under the NYSHRL and the NYCHRL against HSBC with respect to the
change in position from PRA to FA is thus denied. 4
B. Claims Against Individual Defendants
The plaintiff alleges that the individual defendants should
be held liable under the NYSHRL and the NYCHRL for disability
discrimination, retaliation, failure to accommodate, and hostile
work environment. 5 The plaintiff alleges that the individual
defendants are liable on a direct theory and an aiding and
abetting theory.
Individual liability under the NYSHRL is limited to
individuals who are owners or supervisors. See Malena, 886 F.
Supp. 2d at 365-66. “A supervisor is an employer for purposes of
establishing liability under the NYSHRL if that supervisor
In Count Six of the Amended Complaint, the plaintiff alleged that the
defendants violated Section 8-107(19) of the NYCHRL. The parties do not
discuss this claim in their briefs. In any case, “[t]hreats are required to
state a claim for violation of Admin Code § 8-107(19).” Nieblas-Love, 165 F.
Supp. 3d at 78 (citation omitted). The plaintiff has not presented evidence
of any threats he received from HSBC or any of the individual defendants, or
that any such threats were aimed at intimidating or interfering with the
plaintiff’s exercise of a protected right. Accordingly, this claim against
HSBC and the individual defendants is dismissed.
5 To the extent that the plaintiff intended to bring any claims against
individual defendants under the ADA, those claims are dismissed because the
ADA does not provide for individual liability. See Cerrato v. Durham, 941 F.
Supp. 388, 395 (S.D.N.Y. 1996) (discrimination claims); Spiegel, 604 F.3d at
79 (retaliation claims); O’Hara v. Bd. of Coop. Educ. Servs., S. Westchester,
No. 18-CV-8502, 2020 WL 1244474, at *11 (S.D.N.Y. Mar. 16, 2020) (dismissing
discrimination, retaliation, and hostile work environment claims under the
ADA against individual defendants).
4
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actually participates in the conduct giving rise to the
discrimination.” Feingold v. New York, 366 F.3d 138, 157 (2d
Cir. 2004) (alteration, internal quotation marks, and citation
omitted).
Individual liability under the NYCHRL is applicable to all
employees and is not limited to supervisors. Under the NYCHRL,
it is unlawful for “an employer or an employee or agent thereof,
because of the actual or perceived . . . disability . . . to
discriminate against such person in compensation or in terms,
conditions or privileges of employment.” N.Y.C. Admin. Code § 8107(1)(a). However, an individual may be held personally liable
under the NYCHRL only if that person participates in the conduct
giving rise to the discrimination. See Schanfield, 663 F. Supp.
2d at 344.
For the same reasons that HSBC was not liable for the
plaintiff’s failure to accommodate and hostile work environment
claims under the NYSHRL and the NYCHRL, the individual
defendants are also not liable for these claims. The plaintiff
failed to establish a prima facie case of failure to accommodate
and failed to show any actions that rose to the level of a
hostile work environment. See Woldeselassie, 2015 WL 456679, at
*12 (no supervisory liability when the plaintiff failed to show
discriminatory conduct in the first place).
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The plaintiff’s claims of aiding and abetting liability are
also not viable against the individual defendants for the
plaintiff’s failure to accommodate and hostile work environment
claims, because there was no underlying discriminatory conduct.
“Where no violation of the Human Rights Law by another party has
been established . . . an individual employee cannot be held
liable for aiding or abetting such a violation.” Bliss v. MXK
Rest. Corp., 220 F. Supp. 3d 419, 426 (S.D.N.Y. 2016) (quoting
Strauss v. N.Y. State Dept. of Education, 805 N.Y.S.2d 704, 709
(App. Div. 2005) (alteration omitted)).
However, the plaintiff has raised genuine issues of
material fact as to the discrimination and retaliation claims
regarding his alleged demotion from a PRA to FA. Because the
plaintiff argues that only Guglani was involved in his alleged
demotion, the motion for summary judgment on the plaintiff’s
NYSHRL and NYCHRL claims for direct liability and aiding and
abetting for the plaintiff’s discrimination and retaliation
claim is denied solely as to defendant Guglani and solely with
respect to the alleged demotion from PRA to FA. 6 The motion for
To the extent that the plaintiff also brought claims of employer liability
against the individual defendants under the NYCHRL, these claims are
dismissed. It is not clear that any of the individual defendants are
considered employers under the NYCHRL, and in any event, the plaintiff has
failed to show any unlawful discriminatory conduct by any of the individual
defendants other than Guglani. See N.Y.C. Admin. Code § 8-107(13).
6
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summary judgment dismissing all claims under the NYSHRL and the
NYCHRL against all other individual defendants is granted.
IV.
The plaintiff has also filed two notices of motion to
reopen discovery pursuant to Rule 56(d) of the Federal Rules of
Civil Procedure, asking the Court to delay its ruling on the
defendants’ motion for summary judgment to allow the plaintiff
time to obtain affidavits or to take discovery. The text of both
notices of motion are the same, but the second motion also
attached a declaration in support of the motion to reopen
discovery. Dkt. Nos. 227, 233.
A.
Federal Rule of Civil Procedure 56(d) provides that “[i]f a
nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or
to take discovery; or (3) issue any other appropriate order.”
Fed. R. Civ. P. 56(d).
The plaintiff’s motions to reopen discovery are unfounded.
Discovery for this case was originally scheduled to be completed
by August 31, 2018. Dkt. No. 81. The Court extended the deadline
for discovery five times at the parties’ request, until March
27, 2019, over six months after the original date. Dkt. Nos.
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109, 115, 154, 158, 169. During a pre-motion conference on
October 9, 2018, the plaintiff argued to Magistrate Judge Kevin
Nathaniel Fox that the defendants had failed to provide the
specific discovery documents that he now seeks. Dkt. No. 117,
2:8-6:2. The Magistrate Judge decided that such a dispute should
be resolved in the form of a formal motion to compel and asked
the plaintiff how quickly he could file that motion. Id. at
6:19-7:9. The plaintiff responded: “In about a week’s time, Your
Honor.” Id. at 7:10. Therefore, the Magistrate Judge set October
16, 2018 as the filing deadline for the plaintiff’s motion to
compel. Id. at 7:10-12. The Magistrate Judge reemphasized the
reason he was asking the plaintiff to file a formal motion at
the end of the telephone conference and asked if the plaintiff
had any other issue that needed to be addressed. Id. at 11:2512:6. The plaintiff responded that he understood the requirement
and that there was nothing more from him. Id. 12:7-11. The
plaintiff did not file the motion to compel until November 1,
2018. That date was over two weeks later than his self-imposed
schedule, and the Magistrate Judge denied the plaintiff
permission to file the late motion at a conference on November
6, 2018, Dkt. No. 128 at 6-7, and struck the motion from the
record on November 8, 2018, Dkt. No. 127.
The information that the plaintiff now seeks is the same
information that he sought in the motion that the Magistrate
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Judge struck from the record almost two years ago. In the
current motions, the plaintiff seeks to obtain the value and
details of his portfolio and that of similarly situated
employees; the personnel folders for each of the individual
defendants and the plaintiff’s former manager; disciplinary
records of any similarly situated employees; and all email and
phone communications of the plaintiff within the defendants’
possession. In the previous motion, the plaintiff similarly
sought his portfolio data; personnel records of each individual
defendant; discipline records of all advisors; and the
plaintiff’s phone and email records. Declaration of C. Bryan
Cantrell dated December 23, 2019 (“Second Cantrell Decl.”), Ex.
A. The plaintiff is attempting to relitigate an issue that was
decided against him by the Magistrate Judge and which he failed
to appeal.
The plaintiff now argues that his inexperience at drafting
a motion to compel, his grief due to family issues, and the
volume of information withheld by the defendants caused his late
filing. But as the Magistrate Judge explained in a telephone
conference held on November 6, 2018 regarding the motion, these
reasons were known to the plaintiff when he provided his own
filing deadline during the October 9, 2018 conference, but the
plaintiff never raised them. Dkt. No. 128, 6:25-7:12. The
ultimate obligation to follow deadlines, especially when that
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deadline was self-imposed, rests with the parties involved;
failure to do so carries consequences for the parties,
regardless of their pro se status. See, e.g., Jonas v. Citibank,
N.A., 414 F. Supp. 2d 411, 417 (S.D.N.Y. 2006).
Now, long after the close of an extended discovery period,
the plaintiff attempts to relitigate a discovery issue already
resolved by the Magistrate Judge over a year ago. 7 There is no
basis to overturn the Magistrate Judge’s previous ruling.
On November 14, 2018, the plaintiff filed a motion to reconsider the
Magistrate Judge’s decisions of various motions including the Magistrate
Judge’s denial of the plaintiff’s motion to compel discovery. Dkt. No. 134.
In an order dated December 7, 2018, Dkt. No. 146, the Magistrate Judge struck
various discovery filings by the plaintiff which appeared to be contrary to
the rulings that the Magistrate Judge had made at the November 6, 2018
conference, including the Magistrate Judge’s denial of the plaintiff’s
request to file the plaintiff’s motion to compel beyond the plaintiff’s selfimposed deadline of October 16, 2018. Included in the stricken documents were
Docket No. 133 (notice of motion to compel the defendants “to answer written
discovery” and for sanctions) and Docket No. 135 (memorandum of law in
support of the motion to compel and for sanctions). While the Magistrate
Judge did not explicitly deny or strike the motion for reconsideration, Dkt.
No. 134, the gist of the Magistrate Judge’s Order was to deny the plaintiff’s
requests to contest the discovery rulings that the Magistrate Judge made at
the November 6, 2018 conference. In any event, there was no basis for
reconsideration of the Magistrate Judge’s ruling denying the plaintiff’s
application to make a discovery motion beyond the deadline that the plaintiff
had himself suggested. The Magistrate Judge’s decision denying the
plaintiff’s application was well within the exercise of the Magistrate
Judge’s discretion in managing discovery. See, e.g., Thai Lao Lignite
(Thailand) Co. v. Gov’t of Lao People's Democratic Republic, 924 F. Supp. 2d
508, 511 (S.D.N.Y. 2013) (noting that Magistrate Judges are afforded broad
discretion in resolving nondispositive disputes, including discovery
disputes); Sea Trade Mar. Corp. v. Coutsodontis, No. 9-CV-488, 2020 WL
2747307, at *5 (S.D.N.Y. May 27, 2020) (“It was well within [the Magistrate
Judge’s] authority to determine that additional discovery was unnecessary to
ensure the fair and efficient resolution of [the] matter.”).
7
Reconsideration of a previous Opinion of the Court “is an extraordinary
remedy to be employed sparingly in the interests of finality and conservation
of scarce judicial resources.” Sigmon v. Goldman Sachs Mortg. Co., 229 F.
Supp. 3d 254, 257 (S.D.N.Y. 2017) (citation omitted). To succeed on a motion
for reconsideration, the movant carries a heavy burden. The movant must show
“an intervening change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest injustice.” Id.
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B.
Moreover, the plaintiff has failed to carry the heavy
burden imposed on parties opposing summary judgment on Rule
56(d) grounds. In these cases, the party raising the motion
“must submit an affidavit showing (1) what facts are sought [to
resist the motion] and how they are to be obtained, (2) how
those facts are reasonably expected to create a genuine issue of
material fact, (3) what effort affiant has made to obtain them,
and (4) why the affiant was unsuccessful in those efforts.”
Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (internal
quotation marks and citations omitted). The material sought must
be “neither cumulative nor speculative”, and “a bare assertion
that the evidence supporting a plaintiff’s allegation is in the
hands of the defendant is insufficient.” Paddington Partners v.
Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (internal citation
and quotation marks omitted).
The plaintiff has failed to show how the facts he seeks
create a genuine issue of material fact. The plaintiff also has
failed to show that the discovery he seeks provides evidence
that the defendants carried out adverse employment actions
(internal quotation marks and citations omitted). “A motion for
reconsideration is not an ‘opportunity for making new arguments that could
have been previously advanced . . . .’” Liberty Media Corp. v. Vivendi
Universal, S.A., 861 F. Supp. 2d 262, 265 (S.D.N.Y. 2012) (quoting Associated
Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005)). The
plaintiff has failed to show that there was any basis for reconsideration of
the Magistrate Judge’s prior discovery ruling.
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because of his disability or in retaliation for his protected
activity. The defendants have responded to the size of the
plaintiff’s portfolio directly, explaining that because the
plaintiff was already struggling with a small client base,
adding more customers to the portfolio would risk overloading
the plaintiff. Defs.’ 56.1 Stmt. ¶ 76. As discussed above, the
plaintiff’s performance and attendance issues were welldocumented throughout the record. Consequently, the plaintiff
has not established that additional information would enable him
to establish a prima facie case under the McDonnell Douglas
burden-shifting framework or that the legitimate reasons for the
adverse employment actions the plaintiff received, which
included the plaintiff’s continued underperformance and
attendance issues, were a pretext for discriminatory behavior.
Accordingly, the plaintiff’s motions to reopen discovery are
denied.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the reasons stated above,
the defendants’ motion for summary judgment dismissing the
claims against HSBC is granted as to the failure to accommodate
and hostile work environment claims and is denied as to the
discrimination and retaliation claims and claims of aiding and
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abetting and employer liability solely with respect to the claim
of alleged demotion from a PRA to FA under the ADA, the NYSHRL,
and the NYCHR. Any ADA claims against the individual defendants
are dismissed. The defendants’ motion for summary judgment
dismissing the claims against the individual defendants under
the NYSHRL and the NYCHRL is granted as to all claims against
the individual defendants Ireland, Anniello, and Foglio; it is
granted as to the failure to accommodate and hostile work
environment claims and denied as to the discrimination
retaliation claims and claims of direct and aiding and abetting
liability under the NYSHRL and the NYCHRL against the individual
defendant Guglani solely with respect to the claim of alleged
demotion from PRA to FA. The plaintiff’s motions to reopen
discovery are denied. The Clerk is directed to close all pending
motions.
SO ORDERED.
Dated:
New York, New York
August 31, 2020
_____/s/ John G. Koeltl___
John G. Koeltl
United States District Judge
56
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