Brantman v. Fortistar Capital, Inc.

Filing 29

OPINION AND ORDER: re: 27 MOTION to Amend/Correct 17 MOTION for Summary Judgment . . filed by Fortistar Capital, Inc., 17 MOTION for Summary Judgment . filed by Fortistar Capital, Inc. For the foregoin g reasons, Defendant's motion for summary judgment is GRANTED. Plaintiff's claims under the NYSHRL are dismissed without prejudice in accordance with this opinion so that they may be pursued in state court. The Court respectfully directs the Clerk to terminate the motions at ECF Nos. 17 and 27. The Clerk of Court is also directed to enter judgment in favor of Defendant, and to close the case. (Signed by Judge Nelson Stephen Roman on 7/21/2017) (rj)

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MAY LING BRANTMAN,
Plaintiff,
No. 15-cv-4774 (NSR)
OPINION & ORDER

-againstFORTISTAR CAPITAL, INC.,
Defendant.
NELSON S. ROMAN, United States District Judge

Plaintiff May Ling Brantman ("Plaintiff') initiated this action against Fortistar Capital Inc.
("Defendant" or "Fortistar"), alleging violations of Title VII of the Civil Rights Act of1964 ("Title
VII"), as amended, 42 U.S.C. §§ 2000e et. seq., the Americans with Disabilities Act ("ADA"), 42
U.S.C. §§ 12101 et seq., and New York State Human Rights Law ("NYSHRL"), N.Y. Executive
Law §§ 290 et seq. Before the Comt is a motion for summary judgment filed by Defendant
pursuant to Rule 56 of the Federal Rules of Civil Procedure.

For the following reasons,

Defendant's motion is GRANTED.

BACKGROUND
The following facts are derived from the parties' respective 56.1 Statements and the record,
and are undisputed unless otherwise indicated.
Defendant Fortistar is engaged in the business of developing, owning, and operating
electric generating facilities. (Plaintiffs Statement in Response to Def. 56.1 Statement ("PL 56.1
Reply"),~

19, ECFNo. 28.) Plaintiff was employed by Defendant from November S, 2012 through

January 23, 2013. (PL 56.1

Reply~

8.) She was hired to perform administrative functions for Mr.

Mark Camora, Owner and President of Fortistar; Ms. Arlene Camora, Fortistar's Vice President
and General Manager of its corporate headquarters; and Ann Zanette, Human Resources Manager.

1

(Decl. of William Sipser in Opposition to Def. Mot. (“Sipser Decl.”), Ex. A, Pl. Dep. Tr. (“Pl.
Tr.”), at 6:14-15, ECF No. 24; Pl. 56.1 Reply ¶ 9.) Plaintiff was a new employee, and her first
three months were considered an “introductory” or probationary period, at the end of which, her
performance would be evaluated to determine whether her employment with Fortistar would
continue. (Pl. 56.1 Reply ¶¶ 8, 16, 18; Declaration of Edward Beane in Support of Defendant’s
Motion for Summary Judgment (“Beane Decl.”), Ex. A, Fortistar Offer Letter Signed by Plaintiff,
at 1, ECF No. 18; Sipser Decl., Ex. B, Zanette Dep. Tr. (“Zanette Tr.”), at 50:12-13; see also Pl.
Tr. 34:15-21 (acknowledging terms of introductory period).) Plaintiff’s title was administrative
assistant and assistant to the office manager. (Pl. 56.1 Reply ¶¶ 8.) Her tasks included functioning
as a personal administrative assistant for Mr. Camora, assisting Ms. Zanette with payroll and other
functions, and assisting Ms. Camora with her office management functions, with the goal of
assuming the role as office manager. (Pl. 56.1 Reply ¶¶ 10-12.)
On January 16, 2013, Plaintiff was assigned to review and catalogue boxes of files and
documents belonging to Defendant’s recently retired general counsel, Robert Dunbar. (Pl. 56.1
Reply ¶¶ 2, 22, 26; Pl. Opposition to Def. Mot. for Summary Judgment (“Pl. Opp.”), at 6, ECF
No. 22.) These files had been kept at Dunbar’s offsite, home office. (Pl. 56.1 Reply ¶ 23; Pl. Tr.
65:24-66:3.) Plaintiff has testified that, while reviewing the materials, she found a DVD in a
plastic case with a photographic image of a woman, taken from behind, bent over, exposing her
bare backside. (Pl. 56.1 Reply ¶¶ 50-51.)
Upon discovering the CD, which Plaintiff testified she considered to be sexually explicit,
she prompted Ms. Camora with the phrase “look what I found,” and showed her the DVD. (Id. ¶
52; Pl. Tr. 89:15-17.) According to Plaintiff, Ms. Comora said the DVD belonged to Mr. Dunbar,
who no longer worked at Fortistar, and told Plaintiff she could speak with Ms. Zanette about the

2

DVD “if she wanted” or “liked.” (Pl. Tr. 89:24, 94:22.) Plaintiff further testified that she spoke
with Ms. Zanette, received no direction, and decided to return the DVD to the box in which she
found it. (Pl. 56.1 Reply ¶¶ 59, 61; Pl. Tr. 91-95.) Additionally Plaintiff testified that, although
she “did not voice a complaint” to Ms. Camora or Ms. Zanette, she believed her conversations
with Ms. Zanette and Ms. Camora constituted complaints. (Pl. Reply ¶ 54; Pl. Tr. 112:8-17.)
Plaintiff also testified that she felt embarrassed and offended (Pl. Tr. 92:21-25), but could
not recall articulating these sentiments to Ms. Zanette or Ms. Camora, or describing how she felt.
(Pl. Tr. 92:24-93:9) (“Q: When you spoke with Ms. Camora did you use any words to describe
how you felt. A: I don’t remember using any words to describe how I felt.”.) However, Ms.
Camora and Ms. Zanette did testify that Plaintiff had described the DVD to them as “pornography”
and/or “pornographic,” and Ms. Camora testified that Plaintiff appeared “upset.” (Sipser Decl.,
Ex. C, Arlene Camora Dep. Tr. (“Camora Tr.”), at 42-46; Zanette Tr. 72:17-18). 1
Plaintiff was instructed to meet with Mr. Dunbar 2 at Fortistar to discuss her document log,
and the documents he believed should be saved or discarded. (Pl. 56.1 Reply ¶ 64; Pl. Tr. 65-66.) 3
Plaintiff did not express discomfort or embarrassment toward meeting with Mr. Dunbar, and she
met with him on January 22, 2013. 4 (Pl. 56.1 Reply ¶ 66; Pl. Tr. 109:20-110:8.) This meeting

1

Plaintiff also told a co-worker that she’d found a “pornographic DVD” in the workplace via “G-chat,” to which the
co-worker responded “but you know what … everybody watches porn, lol.” (See Pl. Tr. 96:2-19; Beane Decl. Exs.
K, L, Transcripts of “G-Chat” Conversations between Plaintiff and Maria Martinez.)
2
Plaintiff only recalled “meeting” Dunbar on two specific occasions – once apparently in passing when he was walking
through corridors of the office, and the other at their meeting on January 22, 2013. At no point during Plaintiff’s twoand-a-half-month employment did Mr. Dunbar have any supervisory authority over her, nor was he involved in
directing her in the performance of her duties as an employee. (Pl. 56.1 Reply ¶¶ 25; Pl. Tr. 63:14-64:3.)
3
Although Plaintiff contends that she had not been given any instructions as to what to do with the DVD, and that
after her meeting with Mr. Dunbar, Ms. Camora asked Plaintiff if she had returned the DVD to him, (Pl. 56.1 Reply
¶¶ 6, 59; Pl. Tr. 105-106), Ms. Camora testified that she had previously told Plaintiff to return the DVD to the box and
to forget about it, and that she never told Plaintiff to return the DVD to Dunbar. (Pl. 56.1 Reply ¶ 59; Camora Tr. 44;
104.) Relatedly, there is conflicting testimony as to whether Ms. Zanette told Plaintiff to shred and destroy the DVD.
(Compare Zanette Tr. 73:22-74:7, with Pl. Tr. 93; Pl. 56.1 Reply ¶ 59.)
4
As previously noted, at the time Plaintiff discovered the DVD, Dunbar was retired. (Pl. Tr. 99:4-6.) Whether or not
Dunbar was off-site by this time, Plaintiff did not see him between the time she discovered the DVD and her meeting
with him on January 22, 2013. (Id. at 99:7-13.)

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lasted five to twenty minutes. (Pl. 56.1 Reply ¶ 67.) During this meeting there was no mention of
the DVD; Plaintiff did not inform Mr. Dunbar that the DVD was in the box, nor did she know at
the that time whether the DVD was still in fact in the boxes or removed; Plaintiff did not sort
through the boxes with him; and neither she nor Mr. Dunbar removed any contents from the boxes.
(Id. ¶¶ 68-69; Pl. Tr. 101-103.) Instead, Mr. Dunbar and Plaintiff reviewed the list Plaintiff had
generated of the boxed contents, and marked those he believed should be retained by Fortistar.
(Pl. 56.1 Reply ¶ 70.) Though Plaintiff did check off the items on her list that were flagged by Mr.
Dunbar, she did not remove them from the boxes, nor did she ever go through the items in the
boxes again. (Id. ¶ 69.)
The following day, approximately one week after Plaintiff had found the DVD and
discussed it with Ms. Camora and Ms. Zanette, Ms. Zanette informed Plaintiff of her termination.
(Pl. 56.1 Reply ¶ 27.) Plaintiff has testified that Defendant failed to take any action to remediate
or address the DVD. (Pl. 56.1 Reply ¶ 5.) In the same vein, Ms. Zanette testified that she did not
conduct any investigation into the DVD, document the incident in any report, ask where Plaintiff
found the DVD or address it with Mr. Dunbar, and that she did not believe that Plaintiff
experienced discrimination when she found the DVD. (Zanette Tr. 74-77, 80:24-81:7.)
During Plaintiff’s two and a half month employment, she was absent from work on unpaid
sick leave on three separate occasions, December 3, 2012, January 8, 2013, and January 23, 2013.
(Pl. 56.1 Reply ¶ 28.) Plaintiff’s scheduled work hours were 8:30 a.m. through 4:00 p.m. (Pl. Tr.
56:9-15.) On December 3, 2012, at 7:22 a.m., Plaintiff wrote to Ms. Comora and Ms. Zanette
indicating that both she and her daughter were ill, she needed the day off, and she understood it
would be unpaid. (Pl. 56.1 Reply ¶ 30.) On January 8, 2013, at 7:58 a.m., Plaintiff wrote to the
Camoras and Ms. Zanette again, indicating she could not attend work that day as her leg had given

4

out while she was walking, she had fallen and she could hardly walk; Plaintiff also wrote that her
leg muscles had been weak since her injection the previous week, and that she hoped to obtain
medication and return to work on the following day. (Id. ¶ 33.) On January 23, 2013, at 7:32 a.m.,
Plaintiff also indicated that she could not report to work that day because she had a shooting pain
in her leg which made it difficult to walk. (Id. ¶ 34.) Plaintiff was informed of her termination on
this day. (Id. ¶ 27.)
Plaintiff never provided Fortistar with a physician’s letter, report or other medical
verification regarding her ailment, (id. ¶ 35; Pl. Tr. 78:17-79:2), nor does it appear that Fortistar
asked her for any. (Zanette Tr. 172:13-15.) However, Plaintiff did testify that she spoke with the
Camoras and Ms. Zanette on “several occasions” about her medical challenges, including her
herniated disk and back problems. (Id.; Pl. Tr. 77:11-78:16.) 5 Ms. Comora and Ms. Zanette both
acknowledged that they were aware Plaintiff experienced pain in her leg and back, and that she
needed medication for her ailments, but testified that they were unaware whether she suffered from
a “disability” or “medical issue.” (Pl. 56.1 Reply ¶ 35; Camora Tr. 50-54; Zanette Tr. 90-91; 9597.) There are factual disputes surrounding Plaintiff’s employment performance, (Pl. 56.1 Reply
¶¶ 36-45; Camora Tr. 67-77, 107:15-23; Zanette Tr. 108-109), but it appears, beyond conversations
(see e.g., Pl. Tr. 44:14-20), no disciplinary action was taken or recorded prior to her termination
(Zanette Tr. 62:15-63:24). As to Plaintiff’s attendance record, as previously mentioned, she took
three unpaid sick days over the course of her two and a half month employment, and she was a
“probationary” or “introductory” employee during this time. (Pl. 56.1 Reply ¶¶ 8, 46.)

5

In Plaintiff’s sworn affidavit submitted in support of her Opposition, she attests that in 2012, she was diagnosed with
a herniated disc in her lumber spine. (Sipser Decl., Ex. D.) Plaintiff attests that this caused muscle spasms in her
lower back and severe sciatic pain down her left leg. (Id.) Plaintiff states that she has seen several pain management
doctors, a physical therapist, received injections and has undergone surgery, among other efforts to address the pain.
(Id.)

5

STANDARD ON A SUMMARY JUDGMENT
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. The rule states in pertinent part:
A party may move for summary judgment, identifying each claim or defense—
or the part of each claim or defense—on which summary judgment is sought.
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). The moving party bears the initial burden of demonstrating the absence of
any genuine dispute or issue of material fact by pointing to evidence in the record, “including
depositions, documents . . . [and] affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(A), “which
it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party has fulfilled its preliminary burden, the
onus shifts to the nonmoving party to raise the existence of a genuine dispute of material fact. Fed.
R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Courts must
“constru[e] the evidence in the light most favorable to the non-moving party and draw[] all
reasonable inferences in its favor.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712,
720 (2d Cir. 2010) (quoting Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005)). In
reviewing the record, “the judge’s function is not himself to weigh the evidence and determine the
truth of the matter.” Anderson, 477 U.S. at 249. Rather, “the inquiry performed is the threshold
inquiry of determining whether there is the need for a trial.” Id. at 250.
DISCUSSION
I.

Plaintiff’s Title VII Retaliation Claim
Title VII prohibits an employer from discriminating against any of its employees because

of opposition to a practice made unlawful under Title VII. 42 U.S.C. § 2000e–3(a). The “objective

6

of this section is obviously to forbid an employer from retaliating against an employee because of
the latter’s opposition to an unlawful employment practice.” Galdieri-Ambrosini v. Nat’l Realty
& Dev. Corp., 136 F.3d 276, 291–92 (2d Cir. 1998) (citing Manoharan v. Columbia University
College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)). “To prevail on a retaliation
claim, the plaintiff need not prove that her underlying complaint of discrimination had merit, but
only that it was motivated by a good faith, reasonable belief that the underlying employment
practice was unlawful.” Id. at 292.
Federal retaliation claims are evaluated under the burden-shifting approach established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires, as an initial step, that a
plaintiff establish a prima facie case of retaliation. To establish a prima facie case of retaliation
under Title VII, a plaintiff must produce evidence sufficient to permit a reasonable trier of fact to
find: 1) that the plaintiff engaged in a protected activity; 2) that the defendant had knowledge of
the protected activity; 3) an adverse employment action; and 4) a causal connection between the
protected activity and the adverse employment action. Zann Kwan v. Andalex Grp. LLC, 737 F.3d
834, 844 (2d Cir. 2013) (citing Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005)) (internal quotation marks omitted). Once a prima facie case has been established a
presumption of retaliation arises, and the burden shifts to the employer to articulate a legitimate,
non-retaliatory reason for the adverse employment action. Id. at 845. Assuming the defendant
articulates such a reason, the presumption of retaliation arising from the plaintiff’s prima facie
case dissipates. Id. At this stage, the plaintiff must then show that the non-retaliatory reason is a
mere pretext for retaliation. Id.
Plaintiff asserts that she complained about a “sexually offensive pornographic video” in
the workplace, and was retaliated against for making this complaint. (See Pl. Opp. at 16-20.)

7

Defendant contends that Plaintiff cannot establish that her reporting of the DVD was protected
activity, that this alleged protected activity was known to Defendant, or that there was a causal
connection between her reporting of the DVD and her termination. (See, e.g., Def. Mem. at 1419.)
a. Plaintiff’s Protected Activity & Defendant’s Knowledge of Said Conduct
i. Plaintiff’s Protected Activity
“An employment practice need not actually violate Title VII for the protected activities
element of a retaliation claim to be satisfied.” McMenemy v. City of Rochester, 241 F.3d 279, 285
(2d Cir. 2001); see Galdieri—Ambrosini, 136 F.3d at 292 (“in order for a plaintiff’s conduct to
qualify as protected activity, she “need not establish that the conduct [s]he opposed was actually a
violation of Title VII”). Instead, a plaintiff need only have a “good faith, reasonable belief that
the underlying challenged actions of the employer violated the law” to establish this prong of a
prima facie retaliation case. Id. at 283. However, “mere subjective good faith belief is insufficient,
the belief must be reasonable and characterized by objective good faith.” Sullivan–Weaver v. New
York Power Authority, 114 F. Supp. 2d 240, 243 (S.D.N.Y. 2000). The reasonableness of a
plaintiff’s belief that the underlying employment practice was unlawful is “to be evaluated from
the perspective of a reasonable, similarly situated person,” Kelly v. Howard I. Shapiro & Assocs.
Consulting Engineers, P.C., 716 F.3d 10, 16–17 (2d Cir. 2013), and assessed considering the
totality of the circumstances, see Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202, 228 (E.D.N.Y.
2010) (“Whether [plaintiff’s] belief was ‘objectively reasonable,’ and not merely subjective, is
determined based on the facts and the record presented.”). See also Semmler v. Cty. of Monroe,
35 F. Supp. 3d 379, 384 (W.D.N.Y. 2014) (“[a] plaintiff’s belief on this point is not reasonable

8

simply because he or she complains of something that appears to be discrimination in some form.”)
(internal quotation marks and citations omitted).
At her deposition, Plaintiff testified that her sex discrimination claim was based only upon
her discovery of the DVD at issue, which she believed to be “gender offensive.”

(See Pl. Tr.

76:12-77:6 (“Q: ….Why do you claim you were discriminated against because of your sex? A: I
found a pornographic DVD that was gender offensive. Q: Other than that incident, is there anything
else that you claim constitutes discrimination based on your sex? A: Not that I know of … Q: …
As you sit here and look at this charge now, other than [the discovery of the DVD] … is there any
other basis for your claim based on sex? A: No.”); Pl. Tr. 80:20-24 (“Q: And it is the DVD that
forms the basis of your charge of sex discrimination? A: Yes Q: And retaliation? A: Yes.”) Thus,
the Court must determine, based on the record, whether it was reasonable for Plaintiff to believe
that finding the DVD at Fortistar subjected her to sex discrimination, such that her comments to
Ms. Zanette and Ms. Camora about the DVD could be considered protected activity precipitating
her alleged unlawful retaliatory termination. Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178
(2d Cir. 1996).
Generally, both within and outside of this Circuit, as to allegations of sex discrimination,
courts have found it unreasonable for an individual to believe that a single, isolated incident could
constitute a Title VII violation. See Greene v. A. Duie Pyle, Inc., 170 F. App’x 853, 856 (4th Cir.
2006) (granting defendant summary judgment on retaliation claim after plaintiff terminated
subsequent to reporting “Penthouse,” “Playboy” and other “sexually offensive” material
throughout workplace on the basis that “[plaintiff’s] testimony boil[ed] down to a few observations
of lewd magazines and inappropriate jokes or drawings over a seven-month period of employment
… [and] based on this handful of observations, [plaintiff] did not have an objectively reasonable

9

belief that [defendant’s] actions were unlawful.”) (emphasis added); Abeln v. Ultra Life Batteries,
07-CV-6113, 2009 WL 857497, at *2 (W.D.N.Y. Mar. 30, 2009) (“courts exploring the issue of
protected activity have consistently concluded that a single, isolated inappropriate comment is
generally insufficient to engender a reasonable belief that a Title VII violation has occurred …
Federal courts are not designed to be arbiters of good taste. More is required.”); Khan v. Hip
Centralized Lab. Servs., Inc., 03-CV-2411 (DGT), 2008 WL 4283348, at *2 (E.D.N.Y. Sept. 17,
2008) (it is “likely true” that one cannot have a good faith reasonable belief that conduct violates
Title VII “where the objectionable comment is an isolated or passing incident.”); Reed, 95 F.3d at
1179 (noting female employee’s complaint about one sexist comment by a coworker “would not
have passed the ‘good faith reasonableness test’” absent evidence of additional demeaning
treatment toward plaintiff); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998) (noting, in a work place harassment case, “[plaintiff] must always prove that the conduct
at issue was not merely tinged with offensive sexual connotations, but actually constituted
discrimina[tion] ... because of ... sex.”) (internal quotation marks omitted); Chenette v. Kenneth
Cole Prods., Inc., 345 F. App’x 615, 619 (2d Cir. 2009) (summary order) (affirming grant of
summary judgment on retaliation claim where plaintiff complained supervisor had kissed her
because “no reasonable person could have believed that a single incident of sexually inappropriate
behavior by a co-worker could amount to” a Title VII claim) (internal citations and quotation marks
omitted) (emphasis added); Semmler v. Cty. of Monroe, 35 F. Supp. 3d 379, 385 (W.D.N.Y. 2014)
(“No reasonable person could have believed that …[there was a] violat[ion] [of] Title VII’s
prohibition on gender-based discrimination … [where] [t]he only incident claimed by [p]laintiff
that arguably ha[d] a sex-based component [was a co-worker] allegedly calling Plaintiff a bitch.

10

No reasonable person could have believed that this single incident of sexually inappropriate
language by a co-worker constituted unlawful sexual harassment.”) (emphasis added).
Though Plaintiff chose not to pursue her separate cause of action for sex discrimination in
order to focus on her claim that she was retaliated against for reporting said discrimination, 6 the
Court notes that it was fashioned at least in part as a claim of hostile work environment, (see
Compl. ¶ 30), and that the notion articulated above also prevails in retaliation cases premised upon
hostile work environment claims. See Denigro v. Mary Imogene Bassett Hosp., 15-CV-0746
(BKS) (TWD), 2016 WL 6652777, at *3 (N.D.N.Y. Sept. 9, 2016) (“Even drawing all inferences
in Plaintiff’s favor and assuming that his supervisor made the remark to him because of his gender
…[making] him ‘uncomfortable’ and ‘upset’ … no reasonable person could have believed that
Plaintiff’s supervisor’s single sexually demeaning remark (and hand gesture) was unlawful under
Title VII … Indeed, Plaintiff alleges no other facts or circumstances from which an inference could
be drawn that his supervisor’s conduct, while sexually offensive, was anything other than an
isolated incident … [As such, Plaintiff] fails to state a retaliation claim”) (internal quotation marks
omitted) (emphasis added); Dottolo v. Byrne Dairy, Inc., 08-CV-0390 (GTS) (ATB), 2010 WL
2560551, at *7 (N.D.N.Y. June 22, 2010) (dismissing retaliation claim on the basis that “that it
was [not] objectively reasonable for Plaintiff to believe that Title VII had been violated … [where],
even accepting the allegations of Plaintiff’s Complaint as true, at most th[e] [Complaint allege[d]

6

Plaintiff chose not to address Defendant’s arguments as to her sex discrimination claims. (See Pl. Opp. at 16, n.3)
(“While Plaintiff did make a claim of sex discrimination in her complaint, for the purpose of this motion she is not
pressing that claim, as the gravamen of the case concerning that issue pertains to the retaliatory act taken by
Defendant in response to her complaints about sexually discriminatory pornographic materials in the workplace.”)
(emphasis added). Plaintiff’s choice is deemed purposeful and these claims are considered abandoned. 105 Mt. Kisco
Assocs. LLC v. Carozza, 15-CV-5346 (NSR), 2017 WL 1194700, at *10 (S.D.N.Y. Mar. 30, 2017) (citing Tuman v.
VL GEM LLC, 15-CV-7801 (NSR), 2017 WL 781486, at *7-8 (S.D.N.Y. Feb. 27, 2017)) (citing Westchester Cty.
Indep. Party v. Astorino, 137 F. Supp. 3d 586, 618 (S.D.N.Y. 2015) (“abandonment constitutes an[] independent
ground for dismissal”)).

11

that Plaintiff was subjected to only one sexually explicit comment, made by his supervisor”)
(emphasis added); see also Williams v. CSX Transp. Co., 533 F. App’x 637, 642, 643 (6th Cir.
2013) (collecting cases supporting the conclusion that “the mere presence of visible pornography
in the workplace, [even] combined with a single confrontation involving sexist remarks … fail[s]
to create a genuine dispute of material fact as to whether there was an objectively sexually hostile
environment”) (emphasis added); Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) (plaintiff’s
regular observation of supervisor watching pornographic videos, discovery of “hard core”
pornographic websites that he viewed on her computer, and “regular[] require[ment]” that she
handle pornographic material in opening supervisor’s mail, combined with other inappropriate
behavior, were relevant to assess whether work environment was objectively hostile to women).
The undisputed evidence indicates that Plaintiff’s retaliation claim is premised upon the
allegation that she was terminated for reporting her discovery of a DVD with the image of a
women’s bare backside (Pl. Tr. 87:20-24), which she discovered when tasked with reviewing the
belongings of a retired employee, Mr. Dunbar. (See supra, at 2-4.) By this time, Dunbar was
either no longer at the office or Plaintiff had not seen him; and there is no indication that: the DVD
was intended for Plaintiff, meant to harass or offend her; that Dunbar knew Plaintiff would be
assigned to review the items; or that he purposely included it in the items sent to Fortistar. (Id.)
Furthermore, after her initial discovery of the DVD, Plaintiff was unaware whether the DVD
remained in the boxes, was not required to handle the items when she met with Dunbar; and never
discussed the DVD with him. (Id.)
Even drawing all inferences in Plaintiff’s favor and assuming that discovering the DVD
“embarrassed” and “offended” her (Pl. Tr. 92:24-25), the record establishes that no reasonable
person could have believed that this single incident was gender discriminatory in violation of Title

12

VII. Even considering that Plaintiff was required to meet with Dunbar, given the jurisprudence on
this point and the undisputed facts surrounding that meeting, the Court’s conclusion remains the
same. Plaintiff’s complaints to Ms. Camora and Ms. Zanette were thus not based upon a good
faith, reasonable believe that Title VII had been violated, and cannot constitute protected activity.
As such, Plaintiff has not presented a prima facie case of retaliation, and Defendant is entitled to
judgement in its favor on Plaintiff’s retaliation claim.
ii. Defendant’s Knowledge of Plaintiff’s Alleged Protected Activity
Even if Plaintiff were able to establish that her complaints were based upon a good faith,
reasonable belief that Title VII had been violated, her retaliation claim would still fail, because she
is also unable to meet the second prong of a prima facie retaliation claim, described supra at 7,
that Defendant had knowledge that she was reporting activity prohibited by Title VII.
Assuming a plaintiff has satisfied the first prong of a prima facie retaliation claim, she need
only make “informal protests of discrimination, including … complaints to management” for this
report to constitute participation in a protected activity. Gregory v. Daly, 243 F.3d 687, 700-01
(2d Cir. 2001). However, as to an employer’s knowledge of a Title VII plaintiff’s complaint,
“implicit in the requirement that the employer [be] aware of the protected activity is the
requirement that it understood, or could reasonably have understood, that the plaintiff’s opposition
was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini, 136 F.3d at 292. “Mere
complaints of unfair treatment … are not protected speech under Title VII.” McNutt v. Nasca, 10CV-1301 (MAD) (RFT), 2013 WL 209469, at *16 (N.D.N.Y. Jan. 17, 2013).
As such, “[t]he onus is on the speaker to clarify to the employer that he is complaining of
unfair treatment due to his membership in a protected class and that he is not complaining merely
of unfair treatment generally.” Id. (emphasis added); see Kelly, 716 F.3d at 17 (affirming judgment

13

against Title VII plaintiff where she “made no complaints that suggested a belief that she was
being discriminated against on the basis of any trait, protected or otherwise [and] … [n]othing in
her behavior … would have allowed her employer to reasonably have understood … that
[plaintiff’s] opposition was directed at conduct prohibited by Title VII”); Sitar v. Ind. Dep’t of
Transp., 344 F.3d 720, 727–28 (7th Cir. 2003) (“[a]lthough an employee need not use the magic
words ‘sex’ or ‘gender discrimination’ to bring her speech within Title VII’s retaliation
protections, [plaintiff] has to at least say something to indicate her gender is an issue. An employee
can honestly believe she is the object of discrimination, but if she never mentions it, a claim of
retaliation is not implicated, for an employer cannot retaliate when it is unaware of any
complaints”) (internal citations and quotation marks omitted); see also Brummell v. Webster Cent.
Sch. Dist., 06–CV–6437, 2009 WL 232789, at *6 (W.D.N.Y. Jan. 29, 2009) (finding complaints
about being treated differently, not clearly attributed to gender, do not qualify as protected
reporting, and noting “[t]he plaintiff must complain of discrimination in sufficiently specific terms
so that the employer is put on notice that the plaintiff believes he or she is being discriminated
against on the basis of race, gender, national origin, or any other characteristic protected by Title
VII.”); Aspilaire v. Wyeth Pharms., Inc., 612 F. Supp. 2d 289, 308–09 (S.D.N.Y. 2009) (“the onus
is on the speaker to clarify to the employer that [s]he is complaining of unfair treatment due to
h[er] membership in a protected class”).
According to Plaintiff’s testimony, her complaint to Ms. Camora consisted of her comment,
“look what I found,” and her display of the DVD. (Pl. Tr. 96:13-24). Ms. Camora responded that
Mr. Dunbar was no longer employed at Fortistar, and told her she could speak with Ms. Zanette
“if she wanted.” (Id.) This conversation lasted a few minutes. (Id. at 94:9-16.) Plaintiff then
showed Ms. Zanette the DVD and told her that she had found it in Mr. Dunbar’s boxes; according

14

to Plaintiff, Ms. Zanette also responded that Mr. Dunbar was no longer at Fortistar. (Id. at 93:1018.) Although Ms. Camora did note Plaintiff appeared “upset,” Plaintiff admits that she did not
verbally express that the DVD made her feel uncomfortable or offended, or any sentiment to the
effect that she felt she was being discriminated against, nor did she provide any verbal articulation
with regard to how the DVD made her feel, see supra at 3. As such, though it may have been clear
she found the DVD indecorous and perhaps upsetting, even when construed in the light most
favorable to Plaintiff, the content of her complaints do not raise a genuine issue of fact as to
whether she put Defendant on notice that she felt she was facing or opposing discrimination on the
basis of her sex, as proscribed by Title VII.
As no evidence in the record supports a finding that Plaintiff made any complaint of sex
discrimination, Ms. Camora and Ms. Zanette could not have understood that she was opposing
activity allegedly unlawful under Title VII, and engaging in protected activity when she spoke
with them about the DVD. For this reason, Plaintiff also fails on this ground to present a prima
facie case of retaliation for the exercise of protected speech. Accordingly, Defendant is entitled to
summary judgment as to Plaintiff’s retaliation claim. The analogous claims brought under
NYSHRL are dismissed without prejudice as indicated below, see infra at 24, so that they may be
pursued in state court.
II.

Plaintiff’s Claims Pursuant to the ADA
a. Discrimination
The ADA proscribes discrimination against “qualified individual[s] on the basis of

disability” with regard to “terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). Plaintiff’s ADA claims are subject to the same McDonell Douglas burden-shifting
framework as her Title VII claim discussed supra, at 7. Wagner v. Cty. of Nassau, 11-CV-1613
(JS) (ARL), 2014 WL 3489747, at *4 (E.D.N.Y. July 11, 2014). As noted in the Title VII
15

discussion above, under this framework, a plaintiff must establish a prima facie case of disability
discrimination; after which the burden shifts to the employer to offer, through the introduction of
admissible evidence, a legitimate non-discriminatory reason for the discharge. Sista v. CDC Ixis
N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). Assuming the employer is able to provide such a
reason, “the burden shifts back to the plaintiff to demonstrate by competent evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.’” Dorgan v. Suffolk Cty. Cmty. Coll., 12-CV-0330 (SJF) (ARL), 2014 WL
3858395, at *6 (E.D.N.Y. Aug. 4, 2014) (citing Patterson v. Cnty. of Oneida, N. Y., 375 F.3d 206,
221 (2d Cir. 2004)).
To establish a prima facie case of disability discrimination, “a plaintiff must show by a
preponderance of the evidence that: ‘(1) [her] employer is subject to the ADA; (2) [s]he was
disabled within the meaning of the ADA; (3) [s]he was otherwise qualified to perform the essential
functions of [her] job, with or without reasonable accommodation; and (4) [s]he suffered adverse
employment action because of his disability.’” Sista, 445 F.3d at 169 (citing Giordano v. City of
New York, 274 F.3d 740, 747 (2d Cir. 2001)). In seeking summary judgment on Plaintiff’s
disability discrimination claim, Defendant argues that Plaintiff fails to establish a prima facie case
of disability discrimination, and that Defendant had legitimate, non-discriminatory and nonretaliatory reasons for terminating Plaintiff’s employment. (See Def. Mem. at 19-24.)
1. Disability as Defined Under the ADA 7
To establish a prima facie case of disability discrimination Plaintiff must show she is
disabled as defined by the ADA. Under the ADA, “disability” is defined as: “(A) a physical or

7

Under the NYSHRL the term “disability” is more broadly defined as “a physical, mental or medical impairment
resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal
bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques ....” N.Y. Exec.
Law § 292(21).

16

mental impairment that substantially limits one or more of the major life activities of [an]
individual; B) a record of such an impairment; or C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). It appears that Plaintiff attempts to establish her disability
primarily under prong (A), with passing reference to prong (C). 8 (See Pl. Opp. at 21-23.)
Plaintiff contends that in late 2012 she was diagnosed with a herniated disk in her lumbar
spine which caused muscles spasms in her lower back, and sciatic pain down her left leg. (See Pl.
Opp. at 22) (citing Sipser Decl., Ex. D, Affidavit of May Ling Brantman.) Plaintiff argues that
this substantially limited her ability to stand, walk or sit for long periods of time. (Id.) In support
of this contention, Plaintiff offers her own affidavit and deposition testimony, and a report, dated
July 8, 2014, from an MRI which is unaccompanied by an affidavit and appears to reflect in
relevant part, “moderate … disc herniation.” (See Pl. Opp. at 22 n.14.) 9 Yet, the Court need not

8

Plaintiff briefly argues that she was “regarded as disabled,” presumably invoking prong C of the ADA disability
definition. (See Pl. Opp. at 22.) “The ‘regarded as disabled’ provision of the ADA is intended to benefit only those
employees erroneously perceived to be disabled, and who are in fact fully able to perform the essential functions of
that job.” Nelson v. City of N.Y., 11-CV-2732 (JPO), 2013 WL 4437224, at *8 (S.D.N.Y. Aug. 19, 2013)) (internal
quotation marks and citations omitted). It follows then, that, “an individual [who is] ‘regarded as’ disabled is not
entitled to a reasonable accommodation.” Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 266–67 (E.D.N.Y.
2015), appeal dismissed (June 18, 2015). As such, even if Plaintiff had established that she could be considered
disabled under the alternative “regarded as” theory, she would need to establish that she could also be considered
qualified to perform the essential functions of her position at Fortistar without a reasonable accommodation, as
required by the third prong of a prima facie ADA case. Yet, Plaintiff does not argue that she could have performed
the essential functions of her job at Fortistar without an accommodation. (See Pl. Opp. at 22-23.) Instead, she argues
only that, with a reasonable accommodation of time off she would have performed adequately, and in fact, contends
that this is a reasonable accommodation case. (See Pl. Opp. at 23, n.16.)
9
Defendant presents a slew of caselaw from this Circuit to support the contention that personal testimony as to the
effect of one’s impairment on a major life activity, without supporting medical evidence, is insufficient to establish a
prima facie ADA case, or to raise an issue of fact as to whether a claimed impairment substantially limits a major life
activity. (See Def. Reply at 7-8.) However, in Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 47 (2d Cir. 2015)
the Second Circuit explained that medical evidence is not “always required for a plaintiff to survive summary
judgment.” See also Mazzocchi v. Windsor Owners Corp., 204 F. Supp. 3d 583, 609 (S.D.N.Y. 2016) (“non-medical
evidence that conveys, in detail, the substantially limiting nature of an impairment may be sufficient to survive
summary judgment.”). That said, although medical evidence may not always be necessary “to establish that an
impairment substantially limits major life activities, [the Second Circuit] has not ruled on whether such evidence is
necessary to establish the existence of an impairment in the first instance.” Mazzocchi, 204 F. Supp. 3d at 610
(emphasis added). Defendant also takes issue with Plaintiff’s submission of the July 2014 MRI scan report, arguing
that it is hearsay unsupported by a physician’s affidavit. The Court notes that the Second Circuit has also indicated
that, as to medical records, “the authentication requirement can be satisfied by “[t]he appearance, contents, substance,
... or other distinctive characteristics of the item, taken together with all the circumstances.” Rodriguez, 788 F.3d at

17

determine whether Plaintiff’s ailment qualifies as a “disability” under the ADA, because, as will
be discussed, even assuming, arguendo, that Plaintiff is disabled, Plaintiff fails to otherwise
establish a prima facie case of ADA discrimination. Dorgan, 2014 WL 3858395, at *6.
2. Whether Plaintiff is “Otherwise Qualified” to Perform Essential Job Functions
As discussed supra, at 16, the third prong of a prima facie ADA discrimination case
requires that Plaintiff show that she was otherwise qualified to perform the essential functions of
her job, in this case, with a reasonable accommodation. Defendant argues that Plaintiff cannot
meet her burden of proving that she could perform an essential function of her role – namely,
predictable attendance – with or without a reasonable accommodation. (See, e.g., Def. Mem. at
21.)
“An employer may be liable under the ADA where it fails to make ‘reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability.’” Carey v. Cty. of Albany, 114-CV-420 (GLS) (CFH), 2016 WL 4098598, at *3
(N.D.N.Y. July 28, 2016) (citing 42 U.S.C. § 12112(b)(5)(A)).

“While a reasonable

accommodation may include adjustments such as the modification of … work schedules or
equipment or job restructuring, reasonable accommodation does not mean the elimination of any
of the position’s essential functions.” Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 261
(E.D.N.Y. 2015), appeal dismissed (June 18, 2015).
“‘[T]he identification of the essential functions of a job requires a fact-specific inquiry into
both the employer’s description of a job and how the job is actually performed in practice.’”

46 (citing Fed.R.Evid. 901(b)(4)). The Court need not rule on these arguments because Plaintiff fails to meet her
burden for other reasons.

18

Carey, 2016 WL 4098598, at *3 (quoting Fowler v. Kohl’s Dep’t Stores, Inc., 07-CV-1197, 2009
WL 2155481, at *5). “‘Under guidelines accompanying EEOC regulations enacted pursuant to
the ADA, courts are instructed to first determine ‘whether the employer actually require[d]
employees in the position to perform the functions that the employer asserts are essential.’” Id.
(quoting Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 101 (2d Cir. 2003) (quoting 29 C.F.R. §
1630.2(n))). “[C]ourt[s] must give considerable deference to an employer’s judgment regarding
what functions are essential.” Id. (quoting Rodal v. Anesthesia Grp of Onondaga, P.C., 369 F.3d
113, 120 (2d Cir. 2004)) (internal quotation marks and citations omitted). To this end, evidence
of whether a particular function is essential includes the employer’s judgement as to the
importance of the function, and written job descriptions prepared prior to the pendant litigation.
See Hernandez, 100 F. Supp. 3d at 261. Ultimately, though, “the question whether a task
constitutes an essential function depends on the totality of the circumstances.” Carey, 2016 WL
4098598, at *4 (internal quotation marks and citations omitted).
Generally, it is an accepted tenet that, “some degree of regular, predictable attendance is
fundamental to most jobs and an employee who cannot get to work does not satisfy the essential
requirements of her employment.” Aquinas v. Fed. Exp. Corp., 940 F. Supp. 73, 78 (S.D.N.Y.
1996) (citing Misek–Falkoff v. IBM Corp., 854 F.Supp. 215, 227 (S.D.N.Y.1994), aff’d, 60 F.3d
811 (2d Cir.), cert. denied, 516 U.S. 991 (1995), 517 U.S. 1111 (1996); and Kotlowski v. Eastman
Kodak Co., 922 F. Supp. 790, 796 (W.D.N.Y.1996)). As to Plaintiff’s former role, the record
indicates that being present at work, and arriving at a particular hour, were essential functions of
the job. Fortistar’s Employee Handbook, dated August 2008, contains a section entitled “Rules of
Conduct.” (Beane Decl. Ex. M, at 18). Within this section is a subsection entitled “Attendance,
Punctuality and Dependability,” which states in relevant part:

19

Fortistar depends heavily on its employees and it is therefore
important that employees attend work as scheduled. Dependability,
attendance, punctuality, and a commitment to do the job right are
essential at all times. As such, employees are expected to work on
all scheduled work days and during all scheduled work hours and to
report to work on time … Three incidences of absence in a six (6)
month period or five incidences in a year are considered excessive
…. [F]requent absences will result in disciplinary action, up to and
including termination.
Plaintiff signed an Employee Handbook Acknowledgement Form on October 23, 2012 and
January 4, 2013. 10 Plaintiff also testified that her specific employment hours were 8:30 a.m. to
4:30 p.m. (See Pl. Tr. at 56:9-11.) She further testified that, in her position at Fortistar, she did
not “have the capability to work from home” and there was “no way [she] could complete [her]
tasks if [she] wasn’t in the office.” (Beane Reply Decl., Ex. A, Pl.’s Tr., 126:12-19.) Furthermore,
Plaintiff had to perform various administrative tasks throughout the day, including preparing for
and setting up conference rooms for meetings, some of which occurred in the early morning. (See,
e.g., Pl. Tr. 72:21-74:2; Camora Tr. 34:15-35:17). Additionally, Plaintiff was the only person that
worked in at least one of her roles. (See Pl. Tr. 54:11-13) (“Q: Was there any other administrative
assistant that worked directly for [Mr. Camora]? A: No.”) Thus, the record indicates that
predictable arrival and attendance were essential functions of Plaintiff’s job.
The record also establishes that Plaintiff was not able to perform the aforementioned
essential functions with or without her requested reasonable accommodation. Plaintiff contends
that she could have performed these functions if she had been provided with a reasonable
accommodation. (See Pl. Opp. at 23.) The accommodation Plaintiff contends she requested was
“not to be able to come to work and stay at home to deal with the pain … when[ever] [she] was

10

Defendant has provided three separate Acknowledgement Forms, two dated October 23, 2012, and one dated
January 4, 2013. Defense Counsel Beane’s Declaration indicates that these forms correspond with the “general,” “site
specific,” and “general and site specific” handbooks respectively. (See Beane Decl. ¶¶ 26, 27.)

20

going through an acute episode of pain.” (Pl. Tr. 115:24-116:4; see id. 115:8-11 (“Q: Did you ask
Ms. Camora for any specific actions that Fortistar could take to alleviate it or make it better or
accommodate you? A: Other than my sick days, no); 84:6-15 (“Q: Did you ask for a change in the
number of hours that you worked on the schedule that you worked to accommodate this herniated
disk condition? A: Not that I remember. Q: Did you ask for any accommodation with respect to
any pieces of equipment in your office or to change your functions to accommodate this …
condition? A: No); 85:9-15 (“Q: … did you at any time say this is going to happen from time to
time and whenever it does I need to take a sick day; did you ever say that? A: I don’t remember
saying that.) Specifically, Plaintiff points to three emails she sent to Ms. Camora on December 3,
2012, January 8, 2013, and January 23, 2013, indicating she could not report to work due to pain
in her leg, and sickness. Plaintiff argues that each of these emails was a request for reasonable
accommodations. (Pl. Opp. at 23; Pl. Tr. 79:8-14.) These emails were sent on 7:22 a.m., 7:58
a.m. and 7:32 a.m. respectively, on the mornings of the days she was requesting to be absent. (See
Beane Decl. Exs. H, I, J.)
Plaintiff bears the burden of proving that a reasonable accommodation exists that would
permit her to perform the essential functions of the job in question. Palmieri v. City of Hartford,
947 F. Supp. 2d 187, 205 (D. Conn. 2013). Such an accommodation cannot involve the elimination
of an essential job function. Id. at 203. The proposed reasonable accommodation that Plaintiff
offers is essentially to attend work when her ailment allows her to, and to be absent on an
intermittent basis, with little notice, otherwise. However, this form of accommodation has been
found to be patently unreasonable where attendance is an essential function of the job in question,
as it is here. See Lewis v. N.Y. City Police Dep’t, 908 F. Supp. 2d 313, 327 (E.D.N.Y. 2012), aff’d,
537 F. App’x 11 (2d Cir. 2013) (citing Aquinas v. Fed. Exp. Corp., 940 F.Supp. 73, 79 (1996))

21

(finding that plaintiff’s proposed reasonable accommodation “amounts to a request for permission
to work only when her illness permits,” and that this request “necessarily undermines the policy
of regular attendance that is essential to her job.”); Samper v. Providence St. Vincent Med. Ctr.,
675 F.3d 1233, 1240 (9th Cir. 2012) (“An accommodation that would allow [a plaintiff] to simply
... miss work whenever she felt she needed to and apparently for so long as she felt she needed to
[a]s a matter of law ... [is] not reasonable on its face.”); Reddick v. Niagara Mohawk Power Co.,
08-CV-0995 (NPM) (ATB), 2010 WL 5185098, at *8 (N.D.N.Y. Dec. 16, 2010) (internal
quotation marks and citations omitted) (“[when an employee’s] absences are so sporadic that the
employer has no way of knowing …. if their employee will be reporting to work, [a] court may
hold, without the need for a trial, that a requested leave of absence is an unreasonable request for
accommodation.”); id. at *6 (“While a leave of absence may constitute a reasonable
accommodation, a request for leave may be unreasonable as a matter of law where the absences
are so sporadic that the employer has no way of knowing, from one day to the next, if their
employee will even be reporting to work....”) (internal citations and quotation marks omitted); see
also McMillan v. City of N.Y., 711 F.3d 120, 123 (2d Cir. 2013) (“In many, if not most,
employment contexts, a timely arrival is an essential function of the position, and a plaintiff’s
inability to arrive on time would result in his failure to establish a fundamental element of a prima
facie case of employment discrimination.”).
Given Plaintiff’s failure to identify a reasonable accommodation that would allow her to
achieve predictable attendance at work, she has not demonstrated that she is “otherwise qualified”
to perform the essential functions of her former role, with or without reasonable accommodation.
See Vandenbroek v. PSEG Power, CT LLC, 365 F. App’x 457, 459–60 (2d Cir. 2009) (plaintiff
was not able to show that he was “otherwise qualified” because “reliable attendance at shifts was

22

an essential function” of his job); Doe v. Major Model Mgmt. Inc., 11-CV-6182 (KBF), 2012 WL
763556, at *8 (S.D.N.Y. Mar. 9, 2012) (erratic absenteeism is sufficient to find that plaintiff is
unable to perform the essential functions of her job); Aquinas, 940 F. Supp. at 78 (“[A] disabled
employee who cannot get to work as often as her employer requires is not ‘otherwise qualified’
for her job under the ADA, and her employer is not required to make allowances for her
absenteeism.”); see also Jackson v. Veterans Admin., 22 F.3d 277, 278 (11th Cir. 1994), cert.
denied, 513 U.S. 1052 (1994) (finding unpredictable and sporadic absences during probationary
period of employment indicated that employee could not fulfill an essential function of his
employment – presence on the job – that no reasonable accommodation could be made to cure the
unpredictable nature of the absences, “[r]equiring the [employer] to accommodate such absences
would place upon the [employer] the burden of making last-minute provisions for [plaintiff’s]
work to be done by someone else” and thus, summary judgment in favor of employer was
appropriate) (emphasis added). Because Plaintiff has failed to present a prima facie case of
discrimination under the ADA, Defendant is entitled to summary judgment on Plaintiff’s ADA
claims. The analogous claims brought under NYSHRL are dismissed without prejudice, as
indicated below, see infra, at 24, so that they may be pursued in state court.
b. Failure to Accommodate
Plaintiff appears to set forth a very brief “failure to accommodate” argument in her
discussion of the third prong of a prima facie discrimination case, discussed in the section
immediately prior. To establish a prima facie failure to accommodate claim, a plaintiff must
demonstrate that “(1) plaintiff is a person with a disability under the meaning of the ADA; (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

23

employer has refused to make such accommodations.” Whether Plaintiff’s ADA claims are
premised upon a failure to provide a reasonable accommodation, or discrimination due to an
alleged disability, as noted above, Plaintiff has failed to satisfy the third prong of her prima facie
case. For the same reasons articulated above, Plaintiff’s reasonable accommodation claim also
fails, and the Court need not go any further in its analysis.
III.

NYSHRL Claims
“In the interest of comity, the Second Circuit instructs that ‘absent exceptional

circumstances, where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary
judgment grounds, courts should abstain from exercising pendent jurisdiction.” Anderson v. Nat’l
Grid, PLC, 93 F. Supp. 3d 120, 148 (E.D.N.Y. 2015) (quoting Birch v. Pioneer Credit Recovery,
Inc., 06–CV–6497, 2007 WL 1703914, at *5 (W.D.N.Y. June 8, 2007); see Hernandez, 100 F.
Supp. 3d at 256 (“[B]ecause the law of New York in regard to relative state and federal disability
claim analysis is still developing,” the Court of Appeals for the Second Circuit has recommended
that where there is an “absence of any continuing basis for federal question jurisdiction [under the
ADA],” “the appropriate analytic framework to be applied to discrimination claims based on a
‘disability’ as defined by New York state and municipal law is a question best left to the courts of
the State of New York.”) (citing Brief v. Albert Einstein Coll. of Med., 423 F. App’x 88, 93 (2d
Cir. 2011)). Because, as discussed, the federal claims against Defendant do not survive summary
judgment, pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental
jurisdiction over any state law claims. Id. (citing 28 U.S.C. § 1367(c)(3) and United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 726 (1966)).

24

CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment is GRANTED.
Plaintiffs claims under the NYSHRL are dismissed without prejudice in accordance with this
opinion so that they may be pursued in state court. The Court respectfully directs the Clerk to
terminate the motions atECF Nos. 17 and 27. The Clerk of Court is also directed to enter judgment
in favor of Defendant, and to close the case.
Dated:

July 11_, 2017
White Plains, New York

SO ORDERED:

NE£=

United States District Judge

25