Wellner, M.D. v. Montefiore Medical Center
Filing
58
OPINION AND ORDER: re: 43 MOTION for Summary Judgment filed by Montefiore Medical Center. The Court observes that had Plaintiff been terminated immediately after her arrest and the publication of the news stories, Defendant would almost certainl y face no liability for disability discrimination or retaliation. In this telling, which a jury may very well conclude is the correct one, Defendant's mistake would not be discrimination towards Plaintiff, but excessive generosity in providing h er time to clear her name. Nevertheless, the Court cannot conclude that no reasonable jury could find Plaintiff's allegations of impermissible discrimination and retaliation to be true. For the reasons stated in this Opinion, Defendant's mo tion for summary judgment is DENIED with respect to the claims for disability discrimination and retaliation under the ADA, the NYSHRL, and the NYCHRL. Defendant's motion for summary judgment is GRANTED with respect to Plaintiff's NYSHRL 167; 296(16) claim for wrongful termination on the basis of her arrest record. The Clerk of Court is directed to terminate the motion at docket entry 43. The parties are ORDERED to submit a letter to the Court, on or before September 20, 2019, to advise the Court of their availability for trial in the third quarter of 2020, or alternatively, if they wish to proceed with a method of alternative dispute resolution. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/29/2019) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DR. RACHEL WELLNER, M.D.,
Plaintiff,
-v.MONTEFIORE MEDICAL CENTER,
17 Civ. 3479 (KPF)
OPINION AND ORDER
Defendant.
KATHERINE POLK FAILLA, District Judge:
On July 5, 2016, Montefiore Medical Center (“Montefiore,” the “Hospital,”
or “Defendant”) terminated the employment of Dr. Rachel Wellner (“Dr.
Wellner” or “Plaintiff”). In the months leading up to the termination, Plaintiff
was the subject of extensive negative publicity regarding her arrest and
interactions with New York City police officers on February 18, 2016. What
exactly occurred between Plaintiff and the officers remains the subject of active
litigation in this District. See Wellner v. Davodian, No. 16 Civ. 7032 (JGK).
Here, however, the Court is asked to address a separate question: whether that
incident and the resulting press coverage were the causes of Plaintiff’s
termination, as Montefiore claims, or whether the termination was the result of
Plaintiff’s request for reasonable medical accommodations for her disabilities,
as she claims. Plaintiff asserts that Montefiore’s reasons for her termination
were pretextual and brings claims for disability discrimination and retaliation
under the Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117, 1213112165, 12181-12189, 12201-12213 (the “ADA”); the New York State Human
Rights Law, N.Y. Exec. Law §§ 290 to 297 (the “NYSHRL”); and the New York
City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-131 (the
“NYCHRL”). Defendant moves for summary judgment on all of Plaintiff’s
claims. For the reasons set forth below, Defendant’s motion is granted in part
and denied in part. 1
BACKGROUND 2
A.
Factual Background
1.
The Parties
Dr. Rachel Wellner is a resident of New York, who was employed as a
breast cancer surgeon at Montefiore from August 5, 2015, through July 5,
2016. (Compl. ¶ 9; Def. 56.1 ¶¶ 1-4). Montefiore Medical Center is a hospital
1
Among Plaintiff’s claims was a claim under NYSHRL § 296(16) for wrongful termination
on the basis of her arrest record. (Compl. ¶¶ 87-94). Defendant moves for summary
judgment on this claim (Def. Br. 17-18), and Plaintiff does not oppose this request (Pl.
Opp. 25 n.7). Accordingly, Defendant’s motion for summary judgment on this claim is
granted.
2
The facts set forth in this Opinion are drawn from the Complaint (“Compl.” (Dkt. #1)) as
well as the parties’ submissions in connection with the instant motion, including
Defendant’s Local Rule 56.1 Statement (“Def. 56.1” (Dkt. #47)), Plaintiff’s
counterstatement (“Pl. 56.1 Opp.” (Dkt. #55)), and Defendant’s reply statement (“Def.
56.1 Reply” (Dkt. #56)). References to individual deposition transcripts, declarations,
and affidavits are referred to using the conventions “[Name] Dep.,” “[Name] Decl.,” and
“[Name] Aff.,” respectively. For ease of reference, Defendant’s opening brief is referred to
as “Def. Br.” (Dkt. #48); Plaintiff’s opposition brief as “Pl. Opp.” (Dkt. #53); and
Defendant’s reply brief as “Def. Reply” (Dkt. #57).
Citations to a party’s 56.1 Statement incorporate by reference the documents cited
therein. Where facts stated in a party’s 56.1 Statement are supported by testimonial or
documentary evidence, and denied with only a conclusory statement by the other party,
the Court finds such facts to be true. See Local Civil Rule 56.1(c) (“Each numbered
paragraph in the statement of material facts set forth in the statement required to be
served by the moving party will be deemed to be admitted for purposes of the motion
unless specifically controverted by a corresponding numbered paragraph in the
statement required to be served by the opposing party.”); id. at 56.1(d) (“Each statement
by the movant or opponent ... controverting any statement of material fact[] must be
followed by citation to evidence which would be admissible, set forth as required by Fed.
R. Civ. P. 56(c).”).
2
affiliated with the Albert Einstein College of Medicine, with its principal office
and place of business located in the Bronx, New York. (Compl. ¶ 11).
2.
Plaintiff’s 2016 Arrest and Defendant’s Reaction
In 2015, Dr. Robert Michler, Chairman of the Department of Surgery at
Montefiore, interviewed and hired Plaintiff for a position at the Hospital. (Def.
56.1 ¶ 2). The following year, on February 18, 2016, Plaintiff was arrested by
New York City police officers. (Id. at ¶ 5). Plaintiff’s arrest was the subject of
discussion in the news media, and on February 19, 2016, the New York Post
published an article describing the incident. (Id. at ¶¶ 5, 8). The article
described Plaintiff’s arrest as stemming from a dispute between her and police
officers over a parking ticket and contained quotations from alleged police
sources and bystanders criticizing Plaintiff’s behavior while being ticketed and
arrested. (Id. at ¶ 8). The article described the Plaintiff as having “rammed” a
police officer’s leg with her car as she attempted to drive away from the scene,
and attributed to her the statement, “I’m the hero; the cops are not!” (Id.).
Plaintiff contests the truth of the news reports. (Pl. 56.1 Opp. ¶ 8).
Whatever the truth of the incident, Plaintiff’s supervisors read the article
after it was published. (Def. 56.1 ¶ 6). Dr. Michler and Montefiore’s General
Counsel, Christopher Panczner, discussed the article after receiving the news
of Plaintiff’s arrest. (Id. at ¶ 7). Dr. Michler came to the conclusion that
Plaintiff needed to be terminated after reviewing the press reports. (Id. at ¶ 11;
see also Michler Dep. 20:1-4). Mr. Panczner believed that Plaintiff’s contract
3
allowed for termination, under a clause addressing “conduct which, in the
judgement of Montefiore, is deemed prejudicial to the best interests of
Montefiore.” (Def. 56.1 ¶ 13; see also Panczner Dep. 39:2-40:9). On
February 18 and 19, 2016, Mr. Panczner and Dr. Michler met with Dr. Phillip
Ozuah, Montefiore’s Chief Operating Officer, and Alfredo Cabrera, Montefiore’s
Chief Human Resources Officer, after which Defendant placed Plaintiff on
administrative leave. (Def. 56.1 ¶ 15; see also Panczner Decl. ¶ 7).
3.
Plaintiff’s Administrative Leave and Defendant’s Investigation
On February 22, 2016, Dr. Michler and Dr. Ragini Mehta, Administrator
for the Department of Surgery, called Plaintiff and informed her that she was
being placed on administrative leave effective immediately. (Pl. 56.1 Opp.
¶ 18). On February 29, 2016, Plaintiff received a letter from Montefiore stating
that she was on paid leave pending the completion of an investigation into the
arrest. (Def. 56.1 ¶ 19; see also Panczner Decl., Ex. 3). On March 15, 2016,
Plaintiff sent a letter in response thanking Montefiore, expressing her belief
that criminal proceedings arising from the arrest would result in a favorable
disposition, and promising to keep Dr. Michler informed of developments. (Def.
56.1 ¶ 20).
On April 7, 2016, Plaintiff’s criminal defense attorney, Alan Futerfas,
sent a letter to Dr. Michler, in which he requested a meeting to discuss
purported evidence of police misconduct and a potential dismissal of the
criminal action. (Def. 56.1 ¶ 21). On April 21, 2016, Mr. Panczner spoke with
4
Mr. Futerfas by telephone regarding the case, and Mr. Futerfas explained that
he would meet with Mr. Panczner and share a video of Plaintiff being assaulted
by a police officer along with other exculpatory evidence. (Id. at ¶ 22). Prior to
the scheduled meeting date, Plaintiff terminated Mr. Futerfas as her attorney
and hired Matthew Myers in his stead. (Id. at ¶¶ 23-24).
On April 21, 2016, Mr. Myers and Mr. Panczner spoke about Plaintiff’s
criminal case. (Pl. 56.1 Opp. ¶ 26). On April 29, 2016, Mr. Panczner informed
Montefiore that Plaintiff intended to plead guilty to a disorderly conduct
violation and not a criminal offense. (Id.). Mr. Panczner informed his
colleagues that Mr. Myers had asked how such a plea would affect Plaintiff’s
employment, and that he had informed Mr. Myers that this discussion was
premature. (Panczner Decl., Ex. 7). On June 6, 2016, Mr. Panczner and Mr.
Myers spoke again; Mr. Myers stated that he would present the exculpatory
video of a police assault to the Bronx County District Attorney and again
inquired how the plea might affect Plaintiff’s employment. (Pl. 56.1 Opp. ¶ 26).
Mr. Panczner “reiterated [Montefiore’s] need to have this reach a resolution or
[Montefiore] would reconsider paying [Plaintiff] pending the outcome of the
case. (Panczner Decl., Ex. 8).
Mr. Panczner and Mr. Myers spoke again the week of June 20, 2016.
(Def. 56.1 ¶ 30). The parties dispute the substance of the last call, which
occurred on June 24, 2016. (See Def. 56.1 Reply ¶ 31). In an email summary
of the call to his colleagues, Mr. Panczner wrote that he understood that
5
Plaintiff would plead to a violation on July 13, 2016, and that he “had
previously told [Mr. Myers] that if the criminal case [were] not resolved [the
week of June 20, 2016], [Montefiore] would need to reconsider continuing
payment of [Plaintiff’s] salary pending the outcome of the case.” (Panczner
Decl., Ex. 9). Mr. Panczner also reported that Plaintiff was “undergoing
psychiatric care as a result of the altercation and that she want[ed] to go on
short-term disability.” (Id.). Mr. Panczner informed Mr. Myers that Plaintiff
should reach out to Hospital staff regarding an accommodation. (Panczner
Decl. ¶ 20; see also Complaint ¶ 47).
4.
Plaintiff’s Unpaid Leave and Termination
On June 29, 2016, Montefiore sent Plaintiff a letter stating that
Montefiore had placed her on paid leave with the expectation that her criminal
matter would be resolved quickly, and because it remained unresolved, her
leave was being converted from paid to unpaid. (Def. 56.1 ¶ 36; see also
Panczner Decl., Ex. 10). On June 30, 2016, Plaintiff sent an email to Dr.
Mehta in which she provided her version of the events leading to her arrest and
inquired as to her job status. (Def. 56.1 ¶ 37; see also Panczner Decl., Ex. 11).
Plaintiff stated that before she decided on a disposition of her criminal case,
she needed to know the Hospital’s plan: “If termination is what is to be
expected, I do need to make arrangements. If your plan is to try to reintegrate
me, it will be a slow but hopefully seamless process. I am still very much in
the process of healing from this trauma.” (Id.). She asked Dr. Mehta to shed
6
light on her situation. (Id.). Dr. Mehta provided the email to Dr. Michler; Mr.
Panczner also reviewed the email. (Def. 56.1 ¶¶ 39, 40).
On July 1, 2016, Mr. Panczner, Dr. Michler, Mr. Cabrera, and Robyn
Ruderman, then Montefiore’s Labor and Employee Relations counsel, held a
conference call regarding Plaintiff. (Def. 56.1 ¶ 41). Dr. Michler testified that
he believed after the July 1 conference call that he had the authority to fire
Plaintiff for the arrest and the subsequent media reporting on her conduct. (Id.
at ¶¶ 44-45; see also Michler Dep. 159:18-160:5). Dr. Michler testified that he
had received complaints from staff and that he believed Plaintiff’s conduct had
been detrimental to Montefiore. (Def. 56.1 ¶¶ 46-47). On July 5, 2016,
Montefiore informed Plaintiff that her employment had been terminated. (Id. at
¶ 51). On July 12, 2016, Plaintiff pleaded guilty to disorderly conduct. (Id. at
¶ 52.
5.
Plaintiff’s Disability Applications
After her termination, Plaintiff applied for short-term disability benefits
through Defendant. (Def. 56.1 ¶ 57). In her application, her treating
physician, Dr. Alexander Bardey, stated that Plaintiff suffered a traumatic
event on February 18, 2016, and that she remained unable to return to work.
(Id. at ¶¶ 60-62). Dr. Bardey further stated that beginning in May 2016, he
advised Plaintiff to restrict employment activities, and he did not advise a
return even to part-time work. (Id.). He was unable to assess when Plaintiff
might be able to return. (Id.). Plaintiff stated in this application, which she
7
signed on July 7, 2016, that she was unable to perform all duties and activities
of employment. (Id. at ¶ 63). Plaintiff subsequently applied to the Social
Security Administration for Disability Insurance Benefits. (Id. at ¶ 72). In that
application, signed on July 7, 2017, Plaintiff stated that she became disabled
on February 19, 2016, and remained unable to work. (Id. at ¶ 73).
B.
Procedural Background
Plaintiff commenced this action on May 10, 2017. (Dkt. #1). On July 28,
2017, Defendant filed an answer. (Dkt. #13). On November 13, 2017, the
Court ordered discovery to commence, and discovery concluded on June 28,
2018. (Dkt. #24, 35). On July 9, 2018, Defendant requested leave to file a
motion for summary judgment, and on July 17, 2018, the Court granted this
request and set a schedule for briefing. (Dkt. #36, 38).
Defendant filed its motion for summary judgment and supporting papers
on August 31, 2018. (Dkt. #43-48). Plaintiff filed her opposition to
Defendant’s motion, along with supporting papers, on November 19, 2018.
(Dkt. #53-55). Defendant filed the reply in support of its motion on
December 18, 2018. (Dkt. #56-57).
DISCUSSION
A.
Applicable Law
1.
Summary Judgment Under Fed. R. Civ. P. 56
Under Federal Rule of Civil Procedure 56(a), a “court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
8
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 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 3 A genuine
dispute exists where “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Fireman’s Fund Ins. Co. v. Great Am. Ins.
Co. of N.Y., 822 F.3d 620, 631 n.12 (2d Cir. 2016) (internal quotation marks
and citation omitted). A fact is “material” if it “might affect the outcome of the
suit under the governing law[.]” Anderson, 477 U.S. at 248.
While the moving party “bears the initial burden of demonstrating ‘the
absence of a genuine issue of material fact,’” ICC Chem. Corp. v. Nordic Tankers
Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016) (quoting Catrett, 477
U.S. at 323), the party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Rather, the nonmoving party “must set forth specific facts showing that there is a genuine
issue for trial.” Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins.
3
The 2010 Amendments to the Federal Rules of Civil Procedure revised the summary
judgment standard from a genuine “issue” of material fact to a genuine “dispute” of
material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010 Amendments) (noting
that the amendment to “[s]ubdivision (a) ... chang[es] only one word — genuine ‘issue’
becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment
determination.”). This Court uses the post-amendment standard, but continues to be
guided by pre-amendment Supreme Court and Second Circuit precedent that refers to
“genuine issues of material fact.”
9
Co., 472 F.3d 33, 41 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)). The
nonmoving party may not rely on “mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment.” Knight v.
U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986). Furthermore, “[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) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d
Cir. 1995) (internal quotation marks and citations omitted)).
“When ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-moving party and
must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003). “Though [the Court] must accept as true the allegations of the party
defending against the summary judgment motion ... conclusory statements,
conjecture, or speculation by the party resisting the motion will not defeat
summary judgment.” Kulak v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996)
(internal citation omitted) (citing Matsushita, 475 U.S. at 587; Wyler v. United
States, 725 F.2d 156, 160 (2d Cir. 1983)); accord Hicks v. Baines, 593 F.3d
159, 166 (2d Cir. 2010).
10
2.
Disability Discrimination and Retaliation
a.
The ADA and the NYSHRL
The ADA provides that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to ... discharge of
employees[.]” 42 U.S.C. § 12112(a). The NYSHRL provides that “[i]t shall be an
unlawful discriminatory practice ... [f]or an employer ... because of an
individual’s ... disability ... to discharge from employment such individual or to
discriminate against such individual in compensation or in terms, conditions
or privileges of employment.” N.Y. Exec. Law § 296(1)(a).
In her opposition, Plaintiff clarifies that she brings claims for disability
discrimination and retaliation under both statutes. (Pl. Opp. 21 n.5). Plaintiff
correctly notes that discrimination and retaliation are separate claims that
require separate analyses. (Id. (citing Treglia v. Town of Manlius, 313 F.3d 713,
719 (2d Cir. 2002) (“A plaintiff may prevail on a claim for retaliation even when
the underlying conduct complained of was not in fact unlawful.”))). However,
Plaintiff’s claims largely overlap. Both rest on Defendant’s alleged decision to
respond to her request for accommodation with termination.
Discrimination claims under the ADA and the NYSHRL are governed by
the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). See Widomski v. State Univ. of N.Y. (SUNY) at
11
Orange, 748 F.3d 471, 476 (2d Cir. 2014); see also Vega v. Hempstead Union
Free School Dist., 801 F.3d 72, 83 (2d Cir. 2015). 4 Under this framework,
the plaintiff bears the initial burden of establishing a
prima facie case of discrimination. If the plaintiff does
so ... the defendant [must] articulate some legitimate,
nondiscriminatory reason for its action. If such a
reason is provided, plaintiff ... may still prevail by
showing ... that the employer’s determination was in
fact the result of [discrimination].
Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (internal quotation
marks and citations omitted).
To establish a prima facie case of discrimination under the ADA or
NYSHRL, a plaintiff must show [i] that [her] employer is subject to the statute;
[ii] that she is disabled within the meaning of the statute or perceived to be so
by her employer; [iii] that she was otherwise qualified to perform the essential
functions of the job with or without reasonable accommodation; and [iv] that
she suffered an adverse employment action because of her disability. See
Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004); see also Nelson v.
City of New York, No. 11 Civ. 2732 (JPO), 2013 WL 4437224, at *6 (S.D.N.Y.
Aug. 19, 2013) (applying this test to claims under the NYSHRL). To establish
retaliation, the prima facie case is similar: a plaintiff must demonstrate that:
4
The New York State Legislature passed several amendments to the NYSHRL in June
2019, the effect of which is to render the standard for claims closer to the standard
under the NYCHRL. See A8421/S6577 (as amended by S6594/A8424). These
amendments were signed into law by Governor Andrew Cuomo on or about August 12,
2019. Significantly, however, these amendments only apply to claims that accrue on or
after the effective date of October 11, 2019.
12
“[i] she engaged in protected activity, [ii] the employer was aware of this
activity, [iii] she was subjected to an adverse employment action against her,
and [iv] a causal connection existed between the alleged adverse employment
action and her protected activity.” McGuire-Welch v. House of the Good
Shepherd, 720 F. App’x 58, 62 (2d Cir. 2018) (summary order) (citing Weixel v.
Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002)).
An adverse employment action is defined as one that is “materially
adverse with respect to the terms and conditions of employment,” and it
includes termination. Flieger v. Eastern Suffolk BOCES, 693 F. App’x 14, 17
(2d Cir. 2017) (summary order) (quoting Davis v. N.Y.C. Dep’t of Educ., 804
F.3d 231, 235 (2d Cir. 2015)). Protected activities include requests for
reasonable accommodations. Id. at 18. Causation can be shown through
indirect proof “that the protected activity was closely followed in time by
adverse action.” Clark v. Jewish Childcare Ass’n, Inc., 96 F. Supp. 3d 237, 262
(S.D.N.Y. 2015) (internal quotation marks and citation omitted).
Once a plaintiff establishes a prima facie case of discrimination or
retaliation, the burden shifts to the defendant to articulate a legitimate, nonretaliatory reason for the challenged employment decision. See Treglia, 313
F.3d at 721. “If … the defendant … points to evidence of a legitimate,
nonretaliatory reason for the challenged employment decision, the plaintiff
must point to evidence that would be sufficient to permit a rational factfinder
13
to conclude that the employer's explanation is merely a pretext for
impermissible retaliation.” Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001).
b.
The NYCHRL
Claims brought under the NYCHRL must be reviewed “independently
from and ‘more liberally’ than their federal and state counterparts.” Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (quoting Williams v.
N.Y. City Hous. Auth., 872 N.Y.S.2d 27, 31 (1st Dep’t 2009)); see generally
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.
2013) (noting that courts must “constru[e] the NYCHRL’s provisions ‘broadly in
favor of discrimination plaintiffs, to the extent that such a construction is
reasonably possible’” (quoting Albunio v. City of N.Y., 16 N.Y.3d 472, 477-78
(2011))). Under the NYCHRL, a plaintiff’s burden is less because she is not
required to show an adverse employment action and need only “show
differential treatment — that she was treated ‘less well’ — because of a
discriminatory intent.” Mihalik, 715 F.3d at 110.
To demonstrate retaliation under the NYCHRL, Plaintiff must show that
she “took an action opposing her 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 (citations
omitted). While the drafters of the NYCHRL expressed a preference for claims
to be resolved by juries, see Williams, 872 N.Y.S.2d at 39, “summary judgment
will still be appropriate where a plaintiff does not adduce sufficient evidence of
14
a link between her termination and a discriminatory motive and where she fails
to rebut convincing evidence that her employer treated her differently for
legitimate business reasons[.]” Kerm Mastour v. Fin. Indus. Regulatory Auth.,
Inc., 814 F. Supp. 2d 355, 367 (S.D.N.Y. 2011).
3.
Summary Judgment in Employment Discrimination Cases
This Court has previously noted that the Second Circuit has emphasized
“the need for caution about granting summary judgment to an employer in a
discrimination case where ... the merits turn on a dispute as to the employer’s
intent.” Lyman v. New York & Presbyterian Hosp., No. 11 Civ. 3889 (KPF),
2014 WL 3417394, at *7 (S.D.N.Y. July 14, 2014) (citing Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks and
citation omitted)). “Because direct evidence of an employer’s discriminatory
intent will rarely be found, affidavits and depositions must be carefully
scrutinized for circumstantial proof which, if believed, would show
discrimination.” Id. (citing Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d
Cir. 1997) (internal quotation marks and citations omitted)).
B.
Analysis
1.
Summary Judgment Is Denied as to Plaintiff's Disability
Discrimination Claims
a.
Triable Issues Exist Concerning Plaintiff's Prima Facie
Showing of Disability Discrimination
The Court begins with Plaintiff’s disability discrimination claims. For
purposes of this motion, the parties do not dispute that Plaintiff is disabled
15
under the ADA, the NYSHRL, and the NYCHRL, and that Defendant is an
employer covered by these statutes. Instead, Defendant argues that Plaintiff
cannot demonstrate a prima facie case of disability discrimination because
(i) Plaintiff cannot demonstrate that she was able to perform the essential
functions of her job at the time of termination (Def. Br. 7-8); and (ii) Plaintiff
cannot establish causation for her claims, as her disability was not the cause
of her termination (id. at 9-10). The Court addresses, and rejects, each of these
arguments.
i.
Genuine Disputes of Material Fact Exist as to
Plaintiff’s Ability to Perform the Duties of Her Job
To demonstrate that Plaintiff was not able to perform the duties of her
job as a physician, Defendant relies heavily on the statements provided in
Plaintiff’s applications for disability insurance to both Montefiore and the Social
Security Administration. (See Def. Br. 7-8 (“Plaintiff stated on her disability
benefits application to the Social Security Administration, under penalty of
perjury: ‘I became unable to work because of my disabling condition on
February 19, 2016.’ Plaintiff stated the same to Montefiore’s insurer.” (internal
citations omitted))). The Court does not find that these statements establish
that Plaintiff was unable to work with a reasonable accommodation.
The Supreme Court has held that an ADA discrimination case can
coexist with a claim for disability benefits, provided that the plaintiff provides
“an explanation of any apparent inconsistency with the necessary elements of
16
an ADA claim.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807 (1999).
“To defeat summary judgment, that explanation must be sufficient to warrant a
reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s
good-faith belief in, the earlier statement, the plaintiff could nonetheless
‘perform the essential functions’ of her job, with or without ‘reasonable
accommodation.’” Id. 5 The Second Circuit has held that before applying
judicial estoppel to factual claims in ADA cases, “a court must carefully
consider the contexts in which apparently contradictory statements are made
to determine if there is, in fact, direct and irreconcilable contradiction.”
DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010). Here, the
Court finds that Plaintiff has provided sufficient explanation for the
inconsistency to survive summary judgment.
Plaintiff made the statements in her disability applications after her
termination, and a reasonable jury could find that they do not contradict her
prior statement that she could return to work with a reasonable
accommodation. On June 30, 2016, Plaintiff informed the Hospital that she
could be reintegrated with an appropriate accommodation: “If your plan is to
try to reintegrate me, it will be a slow but hopefully seamless process. I am still
very much in the process of healing from this trauma.” (Panczner Decl.,
5
Notably, one of the two decisions that Defendant cites on this issue, Micari v. Trans
World Airlines, Inc., 43 F. Supp. 2d 275, 279-80 (E.D.N.Y. 1999), predates the Supreme
Court’s decision in Cleveland. (See Def. Br. 8).
17
Ex. 11). The email clearly suggests that Plaintiff foresaw returning to work
with appropriate recovery time as a realistic possibility. Plaintiff’s statements
regarding total disability came after she was allegedly denied this
accommodation.
This case is analytically similar to Rodal v. Anesthesia Grp. of Onondaga,
P.C., 369 F.3d 113, 119 (2d Cir. 2004). Dr. Rodal also claimed total disability
shortly after termination but sued for disability discrimination, and the Second
Circuit held:
[I[f the evidence is viewed in the light most favorable to
Dr. Rodal, the statements can be construed without
conflict to reflect the evolution of events between May
and July 1999. In this action, Dr. Rodal states that if
his May 1999 request for a scheduling accommodation
had been granted, he could have continued to work as
a Group anesthesiologist, performing the essential
duties of that job. But, as he stated in the New York
action, with no such accommodation having been
granted by July 1999, he could no longer carry out the
duties of that position and, thus, found it necessary to
take disability leave.
Id. The circumstances here are nearly identical. Viewed in the light most
favorable to Plaintiff, the record indicates that she requested an
accommodation in June 2016, so that she could continue to work as a
surgeon, performing the essential duties of that job. However, once that
accommodation was denied, she could no longer carry out the duties of that
position and found it necessary to take disability leave. To be sure, a jury can
examine the contrasting statements that Plaintiff has made in determining
18
whether she can demonstrate that she was able to perform the duties of her
position in July 2016, but the Court cannot foreclose the claim based on
statements made after the intervening event of Plaintiff’s termination.
ii.
Genuine Disputes of Material Fact Exist as to
Whether Plaintiff’s Disability Was the But-For
Cause of Her Termination
Before discussing the evidence on the causal prong, the Court must first
identify the proper standard under the ADA, which is a subject of dispute
between the parties. (Def. Br. 9-10; Pl. Opp. 23-24). The Second Circuit has
recently clarified that the relevant standard in employment discrimination
cases brought under the ADA is a but-for standard. See Natofsky v. City of
New York, 921 F.3d 337, 349 (2d Cir. 2019) (“We conclude that ‘on the basis of’
in the ADA requires a but-for causation standard.”). Therefore, to demonstrate
disability discrimination, Plaintiff must show that she would have retained her
position but for her disability. Id. at 351. However, even under this stricter
standard, the Court finds that a reasonable jury could conclude that Defendant
would not have terminated Plaintiff but for her request for accommodation in
June 2016.
To begin, Defendant points to several pieces of evidence that strongly
indicate that Plaintiff’s arrest, and not her disability, was the cause of her
termination. (Def. Br. 9-10). Dr. Michler has testified that he first sought
Plaintiff’s termination from February 18, 2016. (Def. 56.1 ¶ 11). Plaintiff was
ordered not to return to the Hospital and not to contact patients or staff.
19
(Michler Decl., Ex. 1). Plaintiff points to no evidence suggesting that anyone at
Montefiore argued in favor of bringing her back to staff at any time between her
arrest and her termination. Furthermore, Plaintiff herself has testified that a
major factor in her termination was the conduct of the police. (See Wellner
Dep. 289:14-18 (Q.: “What proportion [of your damages from lost employment]
is on Montefiore in your view? A.: I’ll say 60/40 police to Montefiore.”). The
record is clear that Dr. Wellner’s termination was first contemplated
immediately after her arrest, and that Dr. Michler sought her termination
throughout the period following her arrest. (Def. 56.1 ¶ 16).
Despite this evidence, the Court cannot conclude as a matter of law that
Montefiore elected to terminate Plaintiff with no consideration of her disability.
“‘[B]ut-for’ causation does not require proof that [discrimination] was the only
cause of the employer's action, but only that the adverse action would not have
occurred in the absence of the [discriminatory] motive.” Zann Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013). If Dr. Michler alone made the
decision to fire Plaintiff, there would be no genuine dispute of fact that
Plaintiff’s encounter with the police would have led to her termination
regardless of her disability. However, as Plaintiff notes, the facts make clear
that Dr. Michler was unable to terminate Plaintiff in February or April of 2016.
(See Pl. Opp. 12-13 (citing Michler Dep. 28:5-6, 109-10, 87:18-19)). There was
a shift in Montefiore’s position in early July, and Dr. Michler then understood
he had the authority to terminate Plaintiff. (Id. at 110:18-20). And during that
20
time, Montefiore learned of Plaintiff’s intent to request to seek disability.
(Panczner Decl., Ex. 9).
The Court cannot exclude the possibility that a jury could find that
absent Plaintiff’s request for accommodation, she would not have been
terminated. Defendant asserts that Dr. Michler was the sole individual
responsible for making the decision on Plaintiff’s termination. (Def. Reply 5-7).
But Plaintiff correctly notes that the record casts doubt on this explanation.
(Pl. Opp. 12-13). Dr. Michler initially understood that he lacked authority to
terminate Plaintiff in February, and he only gained the authority to do so after
Montefiore received Plaintiff’s request for accommodation. At this stage of the
litigation, the Court must view the evidence in the light most favorable to
Plaintiff. Accordingly, the Court concludes that a reasonable jury could
examine Montefiore’s shifting position between February and July and
conclude that the precipitating event for Plaintiff’s termination was not her
increasingly-less-recent arrest, but rather her more-recent request for
accommodation. “[T]he but-for causation standard does not alter the plaintiff's
ability to demonstrate causation ... through temporal proximity.” Vega, 801
F.3d at 91 (quoting Zann Kwan, 737 F.3d at 846).
Accordingly, the Court concludes that Plaintiff has adequately met her
burden, and that genuine disputes of material fact preclude summary
judgment on Plaintiff’s prima facie case for disability discrimination under the
ADA and the NYSHRL, and thus under the less-stringent NYCHRL.
21
b.
Defendant Has Provided a Nondiscriminatory Reason for
Firing Plaintiff
In response, Defendant proffers a nondiscriminatory reason for Plaintiff’s
termination, namely, her February 18 arrest and the resulting negative
publicity regarding her conduct. “This burden is one of production, not
persuasion; it ‘can involve no credibility assessment.’” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 509, (1993)). Defendant has provided substantial
evidence that Plaintiff’s termination resulted from nothing more than her own
misconduct and failure to clear her name.
As Defendant explains, Plaintiff was arrested, and the arrest received
substantial news coverage. (Def. 56.1 ¶¶ 11-14). Employees had complained
about Plaintiff and questioned whether Montefiore would allow her to return.
(Id. at ¶ 46). Defendant placed Plaintiff on paid leave immediately after the
arrest and limited her contact with patients and staff. (Id. at ¶¶ 17-20).
Throughout Plaintiff’s criminal proceedings, Defendant’s employees remained
in touch with her attorneys for updates regarding her case. (Id. at ¶¶ 18-35).
Defendant placed her on unpaid leave on June 29, 2016, and upon Plaintiff’s
request regarding a decision as to her future, Defendant terminated her. (Id. at
¶¶ 39-44). No evidence had emerged by that point clearing Plaintiff of
misconduct or rebutting the early press accounts of execrable at the time of her
arrest.
22
On this account of Plaintiff’s arrest, the subsequent investigation, and
lack of exoneration, there was a clear, legitimate reason for her termination.
Plaintiff’s arrest and resulting misconduct had left her discredited and reflected
poorly on the Hospital, and the Hospital made the decision to terminate her on
this basis. There is sufficient evidence of this account in the record to satisfy
Defendant’s burden of production.
c.
Triable Issues Exist Concerning Whether Defendant’s
Proffered Nondiscriminatory Reason Was Pretextual
Having provided a nondiscriminatory rationale, the burden shifts again
to Plaintiff to demonstrate “by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were
a pretext for discrimination.” Lyman, 2014 WL 3417394, at *14 (quoting Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
The Court finds that genuine disputes remain as to whether Plaintiff’s
February 18 arrest and the subsequent news coverage were the actual and only
reasons for Plaintiff’s termination. Defendant argues that Plaintiff’s highly
publicized arrest made it impossible for her to perform her job and
embarrassed her employer. (Def. Br. 10-11). It argues that Plaintiff has
provided no evidence outside of temporal proximity that would cast doubt on
this nondiscriminatory rationale for termination and, further, that temporal
proximity is insufficient to establish pretext. (Id. at 12). The Second Circuit
has indeed held that “temporal proximity of events may give rise to an inference
23
of [discrimination] for the purposes of establishing a prima facie case …, but
without more, such temporal proximity is insufficient to satisfy [Plaintiff’s]
burden to bring forward some evidence of pretext.” El Sayed v. Hilton Hotels
Corp., 627 F.3d 931, 933 (2d Cir. 2010). However, the Court concludes that
the lack of clarity in the record regarding the precise decisionmaker and the
precise timing of Plaintiff’s termination allow for an inference of pretext.
The Court agrees with Plaintiff that Defendant has not provided a
plausible explanation for Dr. Michler’s sudden authority to fire Plaintiff.
Defendant asserts that Dr. Michler merely realized he had the authority in July
to terminate Plaintiff, but does not specify how he gained that authority or
what event removed prior objections. The Court notes that Defendant’s
description of events provides no greater clarity. (See Def. Reply 6 (“Dr. Michler
testified that he ‘assumed’ Dr. Ozuah, had signed off on Plaintiff’s termination
because on the July 1 conference call Dr. Michler ‘recognized that [he] had the
authority and approval to terminate [Plaintiff].’” (citing Michler Dep. 110:21111:3)). The Hospital changed its position in the July 1 conference call, but
there is no clarity in the record as to who on this call gave this indication to Dr.
Michler or what their motivations were. Lack of consistency regarding a
nondiscriminatory rationale can be fatal to a motion for summary judgment.
See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 431 (2d Cir. 2016) (“The
weakness of the evidence supporting the defendant’s explanation, considered in
conjunction with the very close temporal proximity between [plaintiff’s] leave
24
and her termination, would … permit the conclusion that defendants’ decision
to fire [plaintiff] arose … from her much-contested attempt to take … leave.”);
Zann Kwan, 737 F.3d at 847 (“[A] plaintiff may rely on evidence comprising her
prima facie case, including temporal proximity, together with other evidence
such as inconsistent employer explanations, to defeat summary judgment[.]”).
Defendant argues that whoever made the decision, there is nothing in
the record to suggest that Dr. Michler, Dr. Ozuah, or Mr. Panczner had
discriminatory motives. (Def. Reply 7). What is more, Defendant argues that
regardless of whether the ultimate decisionmaker was Dr. Michler, the record is
clear that Plaintiff’s February 2016 arrest led to her July 2016 termination.
Defendant points out that Plaintiff was first suspended with pay immediately
upon her arrest; that the paid leave was converted to unpaid leave on June 29,
2016; and that the termination only came after Plaintiff requested that
Defendant give her clarity on her future there. (Def. Br. 11-15). Defendant
cites Iverson v. Verizon Comm’ns, No. 08 Civ. 8873 (SAS), 2009 WL 3334796
(S.D.N.Y. Oct. 13, 2009), for “the proposition that temporal proximity between
the disclosure of disability and termination [] is not enough to show that [a
defendant’s] reasons for termination were a pretext for discrimination,” where
the plaintiff was suspended prior to the request for disability. (Id. at 13).
The Court agrees that substantial evidence in the record supports
Defendant’s proffered nondiscriminatory reason for Plaintiff’s termination.
However, at this stage in the proceedings, “Plaintiff benefit[s] from the drawing
25
of every conceivable inference in her favor.” Lyman, 2014 WL 3417394, at *23.
Accordingly, the Court notes that Plaintiff’s criminal counsel, Mr. Myers, first
reported to Mr. Panczner that Plaintiff wished to take disability on June 20,
2016. (Panczner Decl., Ex. 9). Plaintiff was not placed on unpaid leave until
after this phone call, undercutting Defendant’s argument that there was a
steady escalation of punishments unrelated to Plaintiff’s termination. After
being placed on unpaid leave, Plaintiff again referenced her disability in the
June 30 email to Dr. Mehta. (Id. at Ex. 11). This letter was immediately
followed by the July 1 telephone call among Defendant’s staff, which
apparently provided Dr. Michler with newfound authority to terminate Plaintiff.
Drawing inferences in Plaintiff’s favor, the pattern appears to be that Plaintiff’s
requests for accommodation were shortly followed by negative decisions
regarding her employment. These rapid decisions contrast with the deliberate
approach that Defendant had taken in the months prior when dealing with
Plaintiff’s arrest and criminal proceedings. While Defendant notes that this
can be explained by Defendant losing patience with the lack of exculpatory
evidence that Plaintiff had promised to produce, and Plaintiff’s own request for
clarity on her future (see Def. Br. 13-14), the Court cannot draw such
inferences in Defendant’s favor at this stage.
The Court agrees that Plaintiff’s arrest and the publicity regarding it
played a clear role in Defendant’s termination decision, but “the plaintiff is not
required to show that the employer’s proffered reasons were false or played no
26
role in the employment decision, but only that they were not the only reasons
and that the prohibited factor was at least one of the motivating factors.”
Holcomb, 521 F.3d at 138. Given the imprecision regarding the ultimate
decisionmaker with respect to Plaintiff’s termination, the shift in Defendant’s
conduct following Plaintiff’s request for medical leave, and the focus on the
fact-intensive question of motive, the Court concludes that triable issues
remain as to whether Plaintiff’s disability was a motivating factor in
Defendant’s ultimate decision to terminate her. While the Court readily
accepts that a jury may find Defendant’s proffered explanation for Plaintiff’s
termination to be more compelling, it does not agree that the record supports
no finding of pretext. Plaintiff’s narrative that Defendant remained willing to
work with her until she and her counsel began discussing a medical leave has
enough support in the record that a reasonable jury could accept it.
Accordingly, summary judgment is denied with respect to Plaintiff’s claim for
disability discrimination under the ADA and the NYSHRL, and, by extension,
under the less stringent standards of the NYCHRL.
2.
Summary Judgment Is Denied as to Plaintiff's Retaliation
Claims
a.
Plaintiff Requested an Accommodation for Her Disability
While the tests for discrimination and retaliation are largely overlapping,
the parties dispute whether the conversation between Mr. Myers and Mr.
Panczner constitutes a request for accommodation of her disability. (Def.
27
Br. 8-9; Pl. Opp. 15-16). The Court finds that it does, and was thus a
protected activity under the ADA. As Plaintiff notes, Dr. Michler testified that
he considered Plaintiff’s communication through her lawyer a request for
accommodation. (See Pl. Opp. 15 (citing Michler Dep. 149:11-16 (“Q. When
you see here that Dr. Wellner says that she wants to go out on short-term
disability, do you consider that to be a request for an accommodation? A.
Yes.”))).
Furthermore, Plaintiff correctly notes that an employer’s obligation to
accommodate disabilities exists even absent a direct request from an employee.
(Pl. Opp. 15-16). The Second Circuit has held that “an employer has a duty
reasonably to accommodate an employee’s disability if the disability is
obvious — which is to say, if the employer knew or reasonably should have
known that the employee was disabled.” Brady v. Wal-Mart Stores, Inc., 531
F.3d 127, 135 (2d Cir. 2008). Numerous cases have held that an employer’s
perception of disability can trigger liability for failure to accommodate under
the ADA. See, e.g., Glaser v. Gap Inc., 994 F. Supp. 2d 569, 578 (S.D.N.Y.
2014) (“Under the ADA, an employer need not know the exact diagnosis to be
liable for discrimination on the basis of a disability; liability may be premised
on the employer's perception, regardless of whether it is accurate, if the
employer relies on such perception to engage in a prohibited act.”). Here, there
is no question that Montefiore was aware of Plaintiff’s mental health problems
at the time of her termination, and therefore, to the extent her termination was
28
retaliation for her request for accommodation, it violates the ADA, the NYSHRL,
and the NYCHRL.
b.
Genuine Disputes of Material Fact Exist Concerning
Plaintiff's Retaliation Claim Arising from Her Discharge
Plaintiff’s disability discrimination claim addresses the termination,
which she alleges arose from her request for medical leave. To the extent her
retaliation claim arises from the same conduct, summary judgment is denied
for the same reasons explained above.
3.
A Failure to Engage in an Interactive Process Is Not an
Independent Basis for Liability
In her opposition, Plaintiff argues that Defendant’s failure to engage with
her in an interactive process to accommodate her disability prior to her
termination demonstrates Defendant’s violation of the ADA, the NYSHRL, and
the NYCHRL. (Pl. Opp. 17-18). As Defendant notes, Plaintiff appears to
suggest, erroneously, that failure to engage in an interactive process
constitutes an independent claim for relief. (Def. Reply 2-3).
“[F]ailure to ‘engage in an interactive process’ … does not constitute an
independent violation of the ADA.” Nazario v. Promed Pers. Servs. NY Inc.,
No. 15 Civ. 6989 (LGS), 2017 WL 2664202, at *7 (S.D.N.Y. June 19, 2017)
(citing Stevens v. Rite Aid Corp., 851 F.3d 224, 231 (2d Cir.), cert. denied, 138
S. Ct. 359 (2017)); see also Jacobsen v. N.Y.C. Health & Hosps. Corp., 22
N.Y.3d 824, 838 (2014) (“[T]o the extent [prior lower court decisions] can be
interpreted as implying that a good faith interactive process is an independent
29
element of the disability discrimination analysis under either the State or City
HRL which, if lacking, automatically compels … a verdict in the employee’s
favor, we reject that notion.”).
It is true that a court can consider a defendant’s failure to engage in an
interactive process as evidence that the defendant engaged in discrimination or
retaliation. See, e.g., Jacobsen, 22 N.Y.3d at 827 (observing that the NYSHRL
and the NYCHRL generally preclude summary judgment in favor of an
employer where the employer has failed to demonstrate that it responded to a
disabled employee’s request for a particular accommodation by engaging in a
good-faith interactive process regarding the feasibility of that accommodation).
Such failure, however, provides no independent basis for liability.
4.
Summary Judgment Is Denied with Respect to Plaintiff’s
Claim for Economic Damages
Finally, Defendant argues that Plaintiff is not entitled to economic
damages, as she has been and remains unable to work due to the PTSD that
she suffered resulting from her arrest. (Def. Br. 15-17). Defendant points to
Plaintiff’s statements to the Social Security Administration and her continued
statements that she is unable to return to work. Defendant cites Saulpaugh v.
Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993), in which the Second
Circuit upheld a district court’s calculation of damages that excluded back pay
during the time in which the plaintiff was disabled and unable to work. (Def.
30
Br. 18). The Court does not agree that Plaintiff is foreclosed from arguing for
economic damages.
Defendant’s argument fails for largely the same reason that its analogous
argument regarding Plaintiff’s ability to perform the duties of her job failed:
Plaintiff’s requests for disability benefits postdate her termination, and her
contention remains that her condition was exacerbated by her termination and
Defendant’s failure to accommodate her disability. Saulpaugh involved a bench
trial, in which the Circuit upheld the district court’s factual findings regarding
the plaintiff’s disability and inability to work. See generally Saulpaugh v.
Monroe Cmty. Hosp., 4 F.3d 134 (2d Cir. 1993). As in its discussion of
Plaintiff’s ability to perform the functions of her job, the Court finds that
Cleveland necessitates allowing Plaintiff to reconcile her statements regarding
her disability with her current request for economic damages. While a jury
may conclude that Plaintiff’s disability forecloses a claim for economic
damages, the Court cannot do so as a matter of law.
CONCLUSION
The Court observes that had Plaintiff been terminated immediately after
her arrest and the publication of the news stories, Defendant would almost
certainly face no liability for disability discrimination or retaliation. In this
telling, which a jury may very well conclude is the correct one, Defendant’s
mistake would not be discrimination towards Plaintiff, but excessive generosity
in providing her time to clear her name. Nevertheless, the Court cannot
31
conclude that no reasonable jury could find Plaintiff’s allegations of
impermissible discrimination and retaliation to be true. For the reasons stated
in this Opinion, Defendant’s motion for summary judgment is DENIED with
respect to the claims for disability discrimination and retaliation under the
ADA, the NYSHRL, and the NYCHRL. Defendant’s motion for summary
judgment is GRANTED with respect to Plaintiff’s NYSHRL § 296(16) claim for
wrongful termination on the basis of her arrest record
The Clerk of Court is directed to terminate the motion at docket entry 43.
The parties are ORDERED to submit a letter to the Court, on or before
September 20, 2019, to advise the Court of their availability for trial in the
third quarter of 2020, or alternatively, if they wish to proceed with a method of
alternative dispute resolution.
SO ORDERED.
Dated: August 29, 2019
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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