Abdelsayed v. New York University et al

Filing 64

OPINION & ORDER ON PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER re: 51 LETTER MOTION for Discovery Concerning Parties' Dispute Over Authorization for Subpoenas addressed to Magistrate Judge Katharine H. Parker from Anjanette Cab rera dated May 2, 2019. filed by NYU School of Medicine, New York University, NYU Langone Hospital-Brooklyn, NYU Langone Medical Center. For the reasons discussed above, Defendants may serve a subpoena on Wyckoff consistent with the above. The Clerk of Court is respectfully requested to terminate the motion at ECF No. 51. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 6/3/2019) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GEORGE ABDELSAYED,
Plaintiff,

06/03/2019

OPINION & ORDER
ON PLAINTIFF’S MOTION FOR A
PROTECTIVE ORDER
17-CV-9606 (VSB) (KHP)

-againstNEW YORK UNIVERSITY, NYU
LANGONE MEDICAL CENTER, NYU
SCHOOL OF MEDICINE, & NYU
LANGONE HOSPITAL-BROOKLYN F/K/A
NYU LUTHERAN MEDICAL CENTER,
Defendants.
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KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

This is an employment action in which Plaintiff claims he was discriminated against
because of a disability in violation of the New York State and City Human Rights Law when
Defendants refused his request for an accommodation and terminated his employment. Plaintiff
also claims breach of his employment contract. Presently before the Court is Defendants’ motion
(ECF No. 51) for authorization to issue three subpoenas to entities that employed or offered
employment to Plaintiff after he left Defendants’ employ. For the reasons set forth below,
Defendants’ motion is GRANTED in part and DENIED in part.
Background
Plaintiff Dr. George Abdelsayed was a Section Chief of Gastroenterology at Defendant
New York University Langone Medical Center (“NYU”) from September 1, 2016 through October
17, 2017. In March 2017, Plaintiff began experiencing pain in both arms and muscle weakness
in his left arm due to nerve root compression in his spinal cord. His back condition also caused

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pain in both legs with prolonged standing or walking. That same month, he elected to have a
surgical procedure on his back to relieve his pain. Unfortunately, the procedure did not work,
and Dr. Abdelsayed continued to experience pain. He then began a course of physical therapy to
address the problem. Altogether, Plaintiff was absent from work from March 2017 through late
September 2017 in connection with the treatment he received for his back.
In late September, Plaintiff’s doctor cleared him to return to work with some limitations.
In particular, Plaintiff requested three accommodations recommended by his doctor: (1) “[a]
seating arrangement should be available for prolonged procedures, such as those lasting greater
than 20-30 minutes; (2) Dr. Abdelsayed cannot perform any procedures that are inherently long
and require the use of heavy equipment such as lead apron; and (3) Floor teaching and work
rounds should be ideally performed at a central station where seats are available.” (See ECF No.
1 at 5.) Defendants informed Dr. Abdelsayad that they could not provide the requested
accommodations and terminated his employment effective October 17, 2019 on the grounds
that he could not perform essential functions of his position. The parties dispute whether
Defendants engaged in an appropriate interactive process concerning the reasonableness of the
requested accommodations prior to terminating Plaintiff’s employment.
Following his termination, Plaintiff sought other employment. Within a relatively short
time after leaving NYU, Plaintiff was offered employment at Wyckoff Heights Medical Center
(“Wyckoff”) as Director of Gastroenterology, but that offer was withdrawn. Plaintiff produced
the job description and offer letter from Wyckoff, which indicates that the job had similar duties
to the job Plaintiff held at NYU. Plaintiff requested the same accommodations from Wyckoff as
he requested from NYU. Plaintiff testified that he did not know why the offer was withdrawn.
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His attorney elaborated in Plaintiff’s opposition to the subpoenas that Wyckoff told Plaintiff the
reasons for the revocation of the job offer were unrelated to Plaintiff’s medical condition or any
request for accommodation.
In or about May 2018, Plaintiff obtained a job as a Staff Physician for Richmond University
Medical Center (“RUMC”), where he still works. Plaintiff does not perform the same type of work
at RUMC as he did at NYU. As a result, Plaintiff represents that he does not need and did not
request any accommodations in connection with his work at RUMC. Prior to obtaining the RUMC
job, Plaintiff worked for about 6 weeks for Our Lady of Lourdes Medical Center (“OLLMC”), a
short-term job he obtained through a staffing agency. He did not perform the same type of work
there as he did at NYU. Plaintiff testified that he did not request or need any accommodations
from OLLMC due to the different nature of work there.
The Proposed Subpoenas
Defendants seek to subpoena all three medical centers referenced above to obtain the
following information:
•
•
•
•
•
•
•
•
•

Dr. Abdelsayed’s job restrictions for the positions,
Dr. Abdelsayed’s medical conditions and how those conditions affected his ability to
perform the positions,
Dr. Abdelsayed’s ability to perform the job duties for the positions including general and
advanced endoscopies,
Dr. Abdelsayed’s requested accommodations for the positions,
Dr. Abdelsayed’s representations about his ability to perform the job duties for the
positions and requested accommodations for the positions,
Dr. Abdelsayed’s pre-employment medical clearance process for the positions and
whether he passed that process,
Dr. Abdelsayed’s compensation and payroll records essential to calculating his lost
wages,
The reasons why Dr. Abdelsayed did not receive a permanent assignment and/or
additional assignments from OLLMC,
And, the reasons why Wyckoff withdrew its offer of employment.
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Plaintiff objects to the proposed subpoenas on privacy grounds and based on case law
holding that subpoenas on current employers should be used only as a last resort due to the
direct negative effect that disclosure of disputes with past employers can have on present
employment. Plaintiff also objects to the proposed subpoenas as (1) overbroad insofar as they
seek information that is not relevant to the claims and defenses in this action and (2) not
proportional to the needs of the case as the subpoenas are unnecessarily redundant insofar as
Plaintiff already has provided deposition testimony and documents on the topics.
Defendants also seek attorneys’ fees and costs incurred in connection with the instant
dispute, which Plaintiff opposes.
Discussion
Under Federal Rule of Civil Procedure 26(b)(1) (“Rule 26(b)(1)”), a party may seek any
discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
A party may seek a protective order if the discovery sought would subject the party to annoyance,
embarrassment, oppression or undue burden or expense. Fed. R. Civ. P. 26(c). In discrimination
cases such as this, whether a defendant employer can subpoena employment records from
entities that employed the plaintiff subsequent to his or her employment with the defendant is
often an issue brought to courts for resolution. Courts within the Second Circuit have recognized
that drawing a present employer into a dispute involving a plaintiff’s prior employer can have
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negative effects on the plaintiff’s employment. For this reason, they typically require relevant
information about subsequent employment to be obtained through less intrusive means; usually,
through the plaintiff. See, e.g., Morales v. Pepsi Co., 16-cv-6597L, 2018 WL 3853390 (W.D.N.Y.
Aug. 14, 2018); Warnke v. CVS Corp., 265 F.R.D. 64, 69 (E.D.N.Y. 2010). However, the outcome
of disputes on the permissibility and scope of this type of subpoena depends on the particular
claims and issues in the case, whether the subpoena targets a current or former employer, and
the nature of the job, industry and impact of the subpoena on the plaintiff’s employment. See,
e.g., Delorenzo Spartan Sec. Servs., Inc., 2018 WL 3979597 (S.D.N.Y. 2018) (narrowing, in
constructive discharge case, scope of subpoena but permitting request for documents indicating
what plaintiff had represented about the reason for his termination from the defendant);
Morales, 2018 WL 3854490, at *3 (denying defendant’s request for order compelling plaintiff to
execute an authorization for release of information from subsequent employers on ground that
information should be sought first from plaintiff); Roth v. Cty. of Nassau, 2017 WL 75753, at *56 (E.D.N.Y 2017) (holding that, where plaintiff relied on hiring process of subsequent employer
to support claim against defendant, plaintiff made certain employment application records
relevant and open to discovery; however, narrowly tailoring the subpoenas and refusing to allow
the defendants to blanketly subpoena all the documents pertaining to the hiring process and
other employment-related documents and requiring defendants to use less intrusive means);
Warnke, 265 F.R.D. at 69-70 (granting motion to quash subpoena on plaintiff’s current employer
and another of her employers after she left the defendant’s employ because information sought
was duplicative insofar as the plaintiff had produced some of the information and other
information sought had no bearing on the suit and was disproportionate to the needs of the

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case); Mirkin v. Winston Res., LLC, 2008 WL 4861840, at *1 (S.D.N.Y. 2008) (permitting deposition
subpoena, pre-2015 Amendment to the Federal Rules of Civil Procedure, on supervisor from
subsequent employer because he might have information about plaintiff’s specific job skills and
performance, was no longer plaintiff’s employer or helping place plaintiff in a job, could be bound
by the protective order in the case, and any alleged embarrassment was minimal since the fact
of plaintiff’s termination was already known to many in plaintiff’s industry). Rule 26 confers
broad discretion upon the trial court to resolve discovery disputes. Seattle Times Co. v. Rhinehart,
467 U.S. 20, 34 (1984).
The first issue the Court addresses is the relevance of the information sought to the
parties’ claims and defenses. To prove a claim of disability discrimination based on a failure to
accommodate under state and city law, a plaintiff must demonstrate: (1) he has a “disability”
within the meaning of the applicable statute, (2) the employer had notice of the disability, (3) he
or she was otherwise qualified to perform the essential functions of his or her job with or without
a reasonable accommodation, and (4) the employer refused to make a reasonable
accommodation. Best v. Drugs, No. 14-CV-2648 (CM), 2017 WL 218251, at *3 (S.D.N.Y. Jan. 11,
2017), aff'd sub nom. Best v. Duane Reade, Inc., 715 F. App'x 95 (2d Cir. 2018); see also Hernandez
v. International Shoppes, LLC, 100 F. Supp.3d 232, 252-255 (E.D.N.Y. 2015); Romanello v. Intesa
Sanpaolo S.p.A., 949 N.Y.S.2d 345, 352–53 (2012), aff'd as modified, 22 N.Y.3d 881 (2013). The
law requires employers to engage in a good faith interactive process upon notice of the need for
an accommodation. Romanello, 949 N.Y.S.2d at 354-55. The burdens of proof differ under State
and City law. Under the City law, the burden is on the employer to demonstrate that a requested
accommodation would pose an undue hardship and therefore need not be provided. Romanello

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v. Intesa Sanpaolo S.p.A., 976 N.Y.S.2d 426 at 428-29. Under the City law, the employer also
bears the burden of proving “‘that the employee could not, with reasonable accommodation,
satisfy the essential requisites of the job.” Boncimino v. New York State Unified Court Sys., No.
17-CV-6760 (VSB), 2018 WL 2225004, at *11 (S.D.N.Y. May 15, 2018) (quoting Romanello, 976
N.Y.S.2d at 429). Importantly, Defendants do not appear to dispute that Plaintiff had a disability.
Rather, they argue that Plaintiff could not meet the requirements of his job with the
accommodations requested or any other reasonable accommodation.
Whether a certain accommodation is reasonable is a fact-specific inquiry that must be
made on a case-by-case basis. Courts look at, among other things, the size of the employer, the
nature and costs of the accommodation, the duration of the proposed accommodation (i.e.,
whether it is temporary or permanent), the type of location and facility, the availability of other
less costly but effective accommodations, the impact of the accommodation (if any) on other
employees and the operations of the facility, and the overall resources of the employer in terms
of number of employees and accommodation. See N.Y. Comp. Codes R & Regs. tit. 9, § 466.11(b);
New York City Admin. Code § 8-102. Types of accommodation vary widely and can include,
among other things, provision of seating, job modification, permanent or temporary job
restructuring, and an extension of a leave of absence; though an accommodation that may be
reasonable for one person, employer, and job may not be reasonable for another person,
employer

and/or

job.

See

Back

Impairment,

Job

Accommodation

Network,

https://askjan.org/disabilities/Back-Impairment.cfm (last visited May 30, 2019) (listing various
accommodations for a range of disabilities including back impairments). Therefore, information
about restrictions and/or accommodations made by other employers of Plaintiff for other

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positions shed little light on whether the accommodations Plaintiff requested at NYU were
necessary and reasonable in light of the facts and circumstances of his specific job duties at NYU.
This is particularly so with respect to OLLMC and RUMC because Plaintiff performed a completely
different job at those medical centers than the one he performed at NYU. Most importantly,
Plaintiff did not (and does not) perform general and advanced endoscopies at OLLMC or RUMC—
the procedures he performed at NYU for which he sought accommodations.
Defendants argue they need records about pre-employment medical exam results and
accommodations considered and rejected by OLLMC and RUMC to determine how Plaintiffs job
duties there differed from his duties at NYU such that he was/is able to work there. But, Plaintiff
already was deposed and testified about his job duties at RUMC and OLLMC and it is evident that
both entities found Plaintiff to be physically qualified to perform. Thus, Defendants already
obtained the information sought and there is no need to separately subpoena this information
from RUMC and OLLMC. The heightened concerns about the impacts of a subpoena on Plaintiff’s
current employment further bolster this Court’s conclusions about the proposed RUMC
subpoena. Although Plaintiff no longer works at OLLMC, Plaintiff argues that he works in a small
medical specialty and that subpoenas could have a broader impact on his reputation in the
specialty and potential future applications for employment at places other than RUMC. The
Court recognizes these valid concerns and finds they also bolster the Court’s conclusions about
the proposed OLLMC subpoena.
In contrast to his jobs at OLLMC and RUMC, the position Plaintiff was offered by Wycoff
was substantially similar to the job Plaintiff held at NYU. Additionally, Plaintiff requested the
same accommodations from Wyckoff that he requested from NYU. The relevance standard for

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discovery is broad. See, e.g., Villella v. Chemical & Mining Co. of Chile Inc., 15-cv-2016, 2019 WL
171987, *2-3, (S.D.N.Y. Jan. 11, 2019); New York v. United States Department of Commerce, 18cv-2921 & 5025, 2018 WL 5260467, *1 (S.D.N.Y. Aug. 17, 2018). Additionally, this Court has broad
discretion in determining relevance for discovery purposes. Williams v. Rosenblatt Sec., Inc., 236
F. Supp. 3d 802, 803 (S.D.N.Y. 2017); In re Air Crash Near Clarence Center, New York, on February
12, 2009, 277 F.R.D. 251, 253 (W.D.N.Y. 2011). Thus, this Court finds that information from
Wyckoff concerning Plaintiff’s request for accommodation and Wyckoff’s evaluation of that
request in deciding to offer or withdraw its employment offer could be relevant to and possibly
support NYU’s argument that Plaintiff’s requested accommodations were not reasonable given
the nature of the job. Similarly, given the close temporal proximity of Plaintiff’s departure from
NYU, any pre-hire medical exam Wycoff conducted evaluating conditions for which Plaintiff
sought accommodation, the limitations they imposed on Plaintiff, Plaintiff’s representations
about his limitations, and the extent to which the requested accommodations addressed those
limitations are relevant because they bear on Plaintiff’s medical conditions and limitations at or
near the time he requested accommodations from NYU, including whether they were
disqualifying. The Court also notes that Plaintiff is not currently employed and never was
employed by Wyckoff, and, as such, concerns about adverse effects of a subpoena are lower than
for a current employer such as RUMC. And, unlike the information he was able to provide about
his employment at RUMC and OLLCM, the information sought by NYU is not in Plaintiff’s
possession.
Plaintiff points out that the needs and staffing composition of hospitals vary and, as such,
obtaining the reasons why one hospital may or may not have hired Plaintiff far exceeds the

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proportionality rules that govern discovery. The Court appreciates and has taken into account
this argument but finds that the narrowly tailored subpoena to Wyckoff is not disproportionate
to the needs of this case given the potential relevance of the information, the minimal cost
associated with the document subpoena on Wyckoff, and other factors set forth in Rule 26(b)(1).
Thus, the Court will grant Defendants’ request to issue a subpoena to Wyckoff for the topics listed
herein. Other topics mentioned by Defendants in their letter motion are irrelevant to Wyckoff
and/or have been addressed through testimony and documents provided by Plaintiff and should
not be included in the subpoena.
Given this Court’s decision, the award of attorneys’ fees and costs incurred in connection
with the instant dispute is not warranted.
Conclusion
For the reasons discussed above, Defendants may serve a subpoena on Wyckoff
consistent with the above. The Clerk of Court is respectfully requested to terminate the motion
at ECF No. 51.

SO ORDERED.
Dated: June 3, 2019
New York, New York
______________________________
KATHARINE H. PARKER
United States Magistrate Judge

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