Roa v Staples, Inc.

Filing 52

OPINION AND ORDER re: 39 MOTION for Summary Judgment . filed by Staples Contract and Commercial, Inc., Staples The Office Superstore East, Inc., Staples, Inc. Defendants' motion for summary judgment is DENIED. The Clerk is i nstructed to terminate the motion. (Doc. #39). By September 18, 2017, the parties shall submit a Joint Pretrial Order in accordance with paragraph 3(A) the Court's Individual Practices. All counsel shall attend a case management conference on S eptember 25, 2017, at 2:15 p.m., at which time the Court expects to set a trial date and dates for pretrial submissions. So Ordered., (Case Management Conference set for 9/25/2017 at 02:15 PM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 8/9/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ARAMINTA ROA,
:
Plaintiff,
:
:
v.
:
:
STAPLES, INC., STAPLES THE OFFICE
:
SUPERSTORE EAST, INC., and STAPLES
:
CONTRACT AND COMMERCIAL, INC.,
:
Defendants.
:
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OPINION AND ORDER
16 CV 1745 (VB)

Briccetti, J.:
Plaintiff Araminta Roa brings this action against her former employers, defendants
Staples, Inc.; Staples the Office Superstore East, Inc.; and Staples Contract and Commercial,
Inc., claiming disability discrimination under both Title I of the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. § 12111, and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 290. Specifically, plaintiff alleges defendants terminated her
employment because of her disabilities.
Before the Court is defendants’ motion for summary judgment. (Doc. #39).
For the reasons set forth below, the motion is DENIED.
The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1367(a).
BACKGROUND
The parties have submitted briefs, statements of fact, and declarations with supporting
exhibits, which reflect the following factual background.
In May 2004, defendants hired plaintiff as a picker in the production department at
defendants’ Montgomery, New York, facility. In 2007, plaintiff became an associate in the bulk
department. In the bulk department, associates prepared merchandise for shipment to customers,
which often required lifting and moving large objects, either manually or with equipment, such
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as a jack. Beginning in or around 2011 and until plaintiff’s termination on July 13, 2015,
Francisco Upia was plaintiff’s supervisor.
The written job description for bulk department associates contained a twelve-item list of
“Primary Responsibilities”:
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Operate material handling equipment to move product within the warehouse
Check-in inbound product and tag product accordingly
Perform various receiving functions, such as unloading trucks and putting away
product in the correct overstock location
Maintain pick locations by cutting product open and placing product in primary
picking locations
Break[] down pallets of returned product, match item quantity and description
to returned packing slip and note any difference
Organize orders to be picked in an efficient manner
Select full case and break pack orders by pulling, stacking and labeling
merchandise and bringing it to the staging area
Inspect all power equipment and complete the safety inspection sheet before
operation
Follow all of the safety procedures
Stack empty pallets; clean and sweep work area and remove trash regularly
Perform all tasks to ensure a safe work environment
Work as a team member by interacting and communicating with fellow
associates in a cooperative, constructive manner

(Bernbach Decl., Ex. 13). The written job description also lists the following “Physical
Demands”:
Physical demands described here are representative of those that must be
met by an employee to successfully perform the essential functions of this job.
Reasonable accommodations may be made to enable individuals with disabilities
to perform the essential functions.
Work requires moderate physical effort and use of motor skills requiring
manual dexterity. While performing duties of this job, employees will regularly
sit, stand, walk, stoop, kneel and crouch. Employee may lift, push or pull
boxes/merchandise weighing between 70 pounds and 100 pounds by hand. Require
physical effort associate with using the personal computer and RF scanners to enter
information. Must be able to read and hear verbal instructions or through a headset.
(Bernbach Decl., Ex. 13).

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Beginning in 2013, plaintiff was diagnosed with several medical conditions that required
restrictions on her work, which increased over time. At the time of plaintiff’s termination, these
restrictions prevented plaintiff from lifting greater than ten pounds, raising and reaching her arms
above her shoulders, turning and twisting her neck, operating electric machinery, and performing
repetitive motions. Defendants placed plaintiff on “light duty” for the duration of her tenure.
According to defendants’ policy, light duty was generally a temporary modification, not
to exceed six months. Because plaintiff was restricted from operating machinery, plaintiff
routinely operated a non-electric, manual pallet jack, which resulted in reduced productivity. At
times, plaintiff would have trouble moving objects necessary to perform various tasks, but her
co-workers would voluntarily assist her. For example, plaintiff’s co-workers would sometimes
stay after their shifts ended to help plaintiff by moving objects so plaintiff could clean around the
bulk department.
On February 18, 2015, Upia, plaintiff’s supervisor, sent an email regarding plaintiff to
Gina Lee, defendants’ human resources manager for the Montgomery facility. Upia asked, “Do
we know how long we have to accommodate Araminta Roa?” and stated that although he had
plaintiff working “within her weight restrictions,” plaintiff’s condition was “getting worst and
not better,” and that she had only been “hitting just 40% of her individual productivity.” 1
(Bernbach Decl., Ex. 17). Lee responded by offering to speak to Upia: “I’ll bring you up to
speed on what I’ve been doing.” Id.

1

In his deposition, Upia testified that, despite plaintiff’s restrictions and accommodations,
plaintiff was no less productive or limited in the amount of work she could do.

3

On March 20, 2015, Upia emailed Lee and Nicole Barchi, a coordinator in the human
resources department, to recommend that plaintiff’s compensation be reduced because her
restrictions prevented her from operating machinery. Lee responded as follows:
It sounds logical – but unfortunately Araminta is being accommodated in her
current position . . . and must be paid at that rate. Under . . . disability laws, we
cannot remove her pay. In addition, her injury cases have gone into litigation so it
is important we don’t make any changes at this time. I am working . . . on her
situation – I know it’s been a long time but I promise there will be a resolution.
(Bernbach Decl., Ex. 25).
On July 10, 2015, Paul Dowd, a loss prevention associate for defendants, received a
complaint from Willie Carley, another of defendants’ employees, that Carley’s bag of chips had
been stolen from his lunch bag in the cafeteria refrigerator. Dowd testified he did not remember
exactly how he investigated this complaint. However, he did say that, based on his usual
practice, he likely reviewed surveillance camera footage from the cafeteria to determine where
and when Carley placed his lunch bag in the refrigerator and reviewed subsequent footage to see
who might have taken something out of Carley’s bag. Dowd testified he reviewed the video,
which in his opinion showed plaintiff reach into Carley’s bag, remove an indiscernible item, and
walk away with the item clasped under her arms. Dowd also said plaintiff had been a suspect in
the theft of another employee’s yogurt from the refrigerator a few months earlier.
The record reflects the investigation was conducted in an unusual fashion. Dowd
testified he relied solely on Carley’s complaint for his belief that Carley’s lunch bag contained a
bag of chips; that is, other than Carley’s complaint, Dowd had no evidence regarding the
contents of the lunch bag, in part because Dowd could not verify the contents of the lunch bag
from the video footage. Moreover, Dowd did not preserve the video footage of Carley placing
his lunch bag in the refrigerator, which was necessary for Dowd’s determination that plaintiff

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reached into Carley’s bag. Dowd testified his investigation did not reveal conclusive evidence
that plaintiff took Carley’s bag of chips. And Lee testified she did not review the video evidence
before approving plaintiff’s termination, and the termination decision was not so urgent that she
could not have waited to view the video before approving it.
Dennis Salvucci, a loss prevention manager, testified the portion of the video showing
where Carley placed his bag should have been saved. Salvucci further testified that, usually
when he is investigating a theft accusation, he goes beyond the video evidence and interviews
people to gather information, including the complainant and the accused. Here, there is no
evidence Salvucci interviewed Carley or third parties, and the evidence is disputed as to whether
Salvucci interviewed plaintiff. Barchi testified that even if plaintiff had stated she took the bag
of chips by accident, plaintiff still would have been terminated based on the video footage. This
is in spite of the facts that (i) Barchi could at best only assume plaintiff had taken chips from
Carley’s bag based on the video footage, and (ii) Lee testified that an honest mistake would not
be theft.
Dowd sent the video of plaintiff and a summation of the events to Salvucci, who
reviewed the information and forwarded it to Barchi. Barchi testified plaintiff was terminated as
a result of this investigation, which was comprised solely of a discussion with Carley and a
review of the video. 2
On July 13, 2015, Barchi had a meeting with plaintiff and Upia, during which Barchi
informed plaintiff of her termination because of the theft of Carley’s bag of chips. In that
meeting and in her deposition, plaintiff admitted she took a bag of chips, but asserted that her

2

The record is unclear as to who actually made the decision to terminate plaintiff. Barchi
said Lee made the decision. Lee said she approved the decision, but that Barchi and Salvucci
made the decision. Salvucci said he did not make the decision.
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sister, Lila Sanchez, left it for her. Plaintiff said she did take Carley’s bag of chips, but it was an
honest mistake, not theft.
DISCUSSION
I.

Legal Standard
The Court must grant a motion for summary judgment if the pleadings, discovery

materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit under the governing
law. . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010) (citation omitted). It is the moving party’s burden to establish the absence of any genuine
issue of material fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010).
If the non-moving party has failed to make a sufficient showing on an essential element
of his case on which she has the burden of proof, then summary judgment is appropriate.
Celotex Corp. v. Catrett, 477 U.S. at 323. If the non-moving party submits “merely colorable”
evidence, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at
249–50. The non-moving party “must do more than simply show that there is some

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metaphysical doubt as to the material facts, and may not rely on conclusory allegations or
unsubstantiated speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)
(internal citations omitted). The “mere existence of a scintilla of evidence in support” of the
non-moving party’s position is likewise insufficient; “there must be evidence on which the jury
could reasonably find” for her. Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir.
2004).
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
reasonable inference could be drawn in favor of the non-moving party on the issue on which
summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
In deciding a motion for summary judgment, the Court need only consider evidence that
would be admissible at trial. Nora Bevs., Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d
Cir. 1998).
II.

ADA Claim
The ADA makes it unlawful for an employer to “discriminate against a qualified

individual on the basis of disability in regard to,” among other things, the “discharge of
employees.” 42 U.S.C. § 12112(a). Disability discrimination claims are evaluated under the
familiar burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009).
The McDonnell Douglas analysis proceeds in three steps: “A plaintiff must establish a prima
facie case; the employer must offer through the introduction of admissible evidence a legitimate

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non-discriminatory reason for the discharge; and the plaintiff must then produce evidence and
carry the burden of persuasion that the proffered reason is a pretext.” Sista v. CDC Ixis N. Am.,
Inc., 445 F.3d 161, 169 (2d Cir. 2006).
The Court discusses each step in turn.
A.

Prima Facie Case

“To establish a prima facie case under the ADA, a plaintiff must show by a
preponderance of the evidence that: (1) [her] employer is subject to the ADA; (2) [she] was
disabled within the meaning of the ADA; (3) [she] was otherwise qualified to perform the
essential functions of [her] job, with or without reasonable accommodation; and (4) [she]
suffered adverse employment action because of [her] disability.” Sista v. CDC Ixis N. Am., Inc.,
445 F.3d at 169 (internal quotation marks admitted). Making out a prima facie ADA case
requires plaintiff to make only a de minimis showing. Zimmermann v. Assocs. First Capital
Corp., 251 F.3d 376, 381 (2d Cir. 2001).
Defendants argue plaintiff has not satisfied the third and fourth elements.
The Court disagrees, as there are material issues of fact as to both elements.
1.

Qualified Individual

The ADA proscribes a covered entity from “discriminat[ing] against a qualified
individual of the basis of disability.” 42 U.S.C. § 12112(a). A “qualified individual” is one
“who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
To determine the essential functions of a job, “a court must conduct a fact-specific
inquiry into both the employer’s description of a job and how the job is actually performed in
practice.” McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (internal quotation

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marks omitted). Evidence of an essential function includes, but is not limited to, (i) “the
employer’s judgment as to which functions are essential,” (ii) a written job description, (iii) “the
amount of time spent on the job performing the function,” and (iv) “the work experience of past
incumbents in the job.” 29 C.F.R. § 1630.2(n)(3)(i–vii).
When a plaintiff cannot perform the essential functions of her position without
accommodation at the time of the adverse employment action, she must show that reasonable
accommodations existed that would permit her to perform those essential functions. See, e.g.,
Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 137–38 (2d Cir. 1995). A “reasonable
accommodation” may include “job restructuring, part-time or modified work schedules,
reassignment to a vacant position . . . modification of equipment or devices . . . and other similar
accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B). However, “[a]
reasonable accommodation can never involve the elimination of an essential function of a job.”
Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003). On defendants’ motion for
summary judgment, “[i]t is enough for a plaintiff to suggest the existence of a plausible
accommodation, the costs of which, facially, do not clearly exceed its benefits. Once plaintiff
has done this, she has made out a prima facie showing that a reasonable accommodation is
available.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d at 138.
Defendants argue there were at least two essential functions of the bulk associate position
that plaintiff could not perform, with or without reasonable accommodation; namely, moving
heavy objects, and operating electric machinery.
First, defendants argue that lifting, pushing, and pulling heavy objects was an essential
function of a bulk associate. Defendants cite the written job description for an associate in the
bulk department, which provides that bulk associates “lift, push or pull boxes/merchandise

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weighing between 70 pounds to 100 pounds by hand” (Bernbach Decl., Ex. 13), and plaintiff’s
testimony that bulk associates performed such tasks.
However, a written job description is not determinative of the essential functions of a
position. See, e.g., McMillan v. City of New York, 711 F.3d at 126. And even if a job
description were determinative, the written description here is not as definitive as defendants
assert. For example, the language immediately preceding the language quoted by defendants
provides that bulk associates “may” perform the quoted tasks (Bernbach Decl., Ex. 13 (emphasis
added)), at least suggesting that such tasks may not be required, and therefore may not be
essential to the position.
Furthermore, even if lifting, pushing, and pulling heavy objects were essential, there is
sufficient evidence to find reasonable accommodations were available. For example, plaintiff
testified that defendants accommodated her by placing her on light duty and limiting her
functions to be in compliance with her various restrictions. She further testified co-workers
would sometimes assist her in moving objects. Such co-worker assistance may be a reasonable
accommodation. 3 Moreover, Upia testified plaintiff’s restrictions and accommodations did not
negatively affect her productivity, suggesting plaintiff could perform the essential functions.
Second, defendants argue that operating electric machinery—namely, an electric pallet
jack—was an essential function of plaintiff’s position, for which a reasonable accommodation
was not available.

3

Importantly, the evidence does not suggest plaintiff completely avoided performing
whole swaths of her duties by passing them off to her co-workers, which may not be a reasonable
accommodation. Compare Borkowski v. Valley Cent. Sch. Dist., 63 F.3d at 140 (“providing an
assistant to help with a job may be an accommodation that does not remove an essential function
of the job from the disabled employee”) with Stevens v. Rite Aid Corp., 851 F.3d 224, 231 (2d
Cir. 2017) (finding defendant not required to grant plaintiff exemptions where other employees
would have performed plaintiff’s essential duties).
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Defendants again rely on the written job description, which states that the operation of
“material handling equipment” is a “primary responsibility.” (Bernbach Decl., Ex. 13).
However, this argument suffers the same deficiencies described above; namely, a written
job description is just one consideration in a fact-intensive inquiry, and the language of the job
description does not speak definitively regarding this function. Although the job description
speaks of the operation of “material handling equipment,” it is unclear as to the nature of such
equipment or whether such equipment must be electric, as defendants contend.
Moreover, even if the Court were to find the operation of an electric pallet jack was an
essential function, there is still an issue of fact regarding whether a reasonable accommodation
existed. Plaintiff testified that although many bulk associates used electric pallet jacks, she
performed the same functions using a manual pallet jack. A reasonable jury could find the use of
a manual pallet jack instead of an electric jack is a reasonable accommodation. See, e.g., 42
U.S.C. § 12111(9)(B) (stating that “modifications of equipment or devices” can be a reasonable
accommodation).
2.

Discriminatory Intent

“To satisfy her burden on the fourth prong of her prima facie claim, [plaintiff] must show
that she was terminated under circumstances that give rise to an inference of discriminatory
intent.” Primmer v. CBS Studios, Inc., 667 F. Supp. 2d 248, 259 (S.D.N.Y. 2009). Indicia of
discriminatory intent include, but are not limited to, “actions or remarks made by
decisionmakers, . . . a pattern of recommending the plaintiff for positions for which he or she is
not qualified . . . [and], more generally, upon the timing or sequence of events leading to the
plaintiff’s termination.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996).

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Replacing a disabled employee with a non-disabled employee also evinces discriminatory intent.
Costello v. St. Francis Hosp., 258 F. Supp. 2d 144, 154 (E.D.N.Y. 2003).
Based on the record evidence, viewed in plaintiff’s favor, a reasonable jury could find
sufficient indicia of discriminatory intent.
Such evidence includes Upia’s behavior regarding plaintiff. For example, plaintiff
testified Upia often expressed dissatisfaction with plaintiff’s restrictions, commented on her
extended light-duty status, made demeaning gestures and expressions about plaintiff’s
disabilities, and assigned her undesirable tasks, such as cleaning. Moreover, the record contains
emails from Upia to Lee expressing frustration at plaintiff’s reduced productivity because of her
disabilities and suggesting plaintiff’s compensation be reduced. Lastly, defendants replaced
plaintiff with an employee who could operate the electrical pallet jack. The totality of these
factors is enough to satisfy plaintiff’s de minimis burden for the fourth prong of her prima facie
case. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d at 91.
Defendants claim this evidence is not probative because (i) Upia made these statements
long before plaintiff’s termination and (ii) Upia was not involved in the termination decision.
The Court looks at the following factors in determining the probative value of
purportedly discriminatory statements:
(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level coworker); (2) when the remark was made in relation to the employment decision at
issue; (3) the content of the remark (i.e., whether a reasonable juror could view the
remark as discriminatory); and (4) the context in which the remark was made (i.e.,
whether it was related to the decision-making process).
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010).

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First, even though Upia did not make the ultimate decision to terminate plaintiff, Upia
was plaintiff’s direct supervisor, made some of these statements to decisionmakers in plaintiff’s
termination, and was at least involved in plaintiff’s termination.
Second, although some of the alleged remarks and gestures took place at an unknown
time, the emails were only four to five months before plaintiff’s termination. There is no brightline rule as to when a statement becomes too temporally attenuated from the adverse
employment action to be probative. See Sethi v. Narod, 12 F. Supp. 3d. 505, 540 (E.D.N.Y.
2014). Moreover, other district courts in this circuit have found more temporally removed
statements to be probative. See Papalia v. Milrose Consultants, Inc., 2011 WL 6937601, at *12
(S.D.N.Y. 2011) (finding a gap of one year between plaintiff’s demotion and the discriminatory
comments to be probative); see also Dupree v. UHAB-Sterling St. Hous. Dev. Fund Corp., 2012
WL 3288234, at *7 n.7 (E.D.N.Y. 2012) (finding a remark made six months before plaintiff’s
discharge to “not significantly weaken its probative value”).
Third, the fact that Upia made such statements to higher-level decisionmakers without the
decisionmakers reprimanding or condemning the behavior, again viewed in plaintiff’s favor,
could reasonably be interpreted as at least tacitly condoning the discrimination.
Fourth, given the context of these remarks, they could reasonably be interpreted as
influencing the decisionmaking process, especially due to the consistent nature of the remarks
over time. Contra Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (finding that
“‘stray remarks’ alone do not support a discrimination suit”).
In addition to Upia’s conduct, the record evidence regarding “the sequence of events
leading to plaintiff’s discharge,” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d
Cir. 2001), reasonably supports a finding of defendants’ discriminatory intent, especially with

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respect to defendants’ theft investigation and termination of plaintiff; a reasonable jury could
find that the investigation was perfunctory and inadequate, given that a long-time employee was
terminated as a result.
Discriminatory intent is further evinced by the fact that the alleged theft in question was a
one-time event involving a single-serving bag of chips, rather than a pattern of thefts 4 or theft of
a valuable item. Moreover, the evidence to support defendants’ conclusion that plaintiff stole the
bag of chips was weak; namely, Carley’s complaint that somebody took his chips and a very
poor-quality video showing only what plaintiff already admits, that she took a bag of chips from
the refrigerator. Furthermore, the undisputed evidence reflects that defendants failed to preserve
crucial evidence used to make the finding of theft and failed to interview a crucial witness in
Sanchez (Roa’s sister), and there is an issue of fact as to whether defendants interviewed the
accused. Finally, Lee approved plaintiff’s termination without reviewing the video evidence.
B.

Non-Discriminatory Reason for Plaintiff’s Termination

As to the second step of the McDonnell Douglas analysis, defendants bear the burden of
putting forth a legitimate, non-discriminatory reason for plaintiff’s termination. McBride v. BIC
Consumer Prods. Mfg. Co., 583 F.3d at 96.
Defendants assert and plaintiff does not contest that the legitimate, non-discriminatory
reason for terminating plaintiff was her theft of the bag of chips. See, e.g., Crews v. Trs. of
Columbia Univ., 452 F. Supp. 2d 504, 523 (S.D.N.Y. 2006).

4

Although Dowd noted in his summary that plaintiff had been implicated a few months
before in the theft of a yogurt, Dowd did not find evidence to support the implication.

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C.

Pretext

At the third step of the McDonnell Douglas analysis, a plaintiff must present “sufficient
admissible evidence from which a rational finder of fact could infer that more likely than not she
was the victim of intentional discrimination.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 447 (2d
Cir. 1999). “[T]he plaintiff is not required to show that the employer’s proffered reasons were
false or played no 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.” Cronin v. Aetna Life
Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995); accord Parker v. Columbia Pictures Indus., 204 F.3d
326, 336–37 (2d Cir. 2000) (extending the “mixed motive” analysis to ADA cases).
The burden of proving intentional discrimination “may often be carried by reliance on the
evidence comprising the prima facie case, without more.” Cronin v. Aetna Life Ins. Co., 46 F.3d
at 203. Again, plaintiff carries a de minimis burden:
Thus, unless the employer has come forward with evidence of a dispositive
nondiscriminatory reason as to which there is no genuine issue and which no
rational trier of fact could reject, the conflict between the plaintiff’s evidence
establishing a prima facie case and the employer’s evidence of a nondiscriminatory
reason reflects a question of fact to be resolved by the factfinder after trial.
Id.
Here, the substantial evidence of discriminatory intent, summarized above and viewed in
plaintiff’s favor, is sufficient for a reasonable jury to find defendants’ purported nondiscriminatory reason was pretext.
III.

NYSHRL Claim
Because “the same elements that must be proven to establish an ADA claim must be also

demonstrated to prove claims under NYSHRL,” plaintiff’s NYSHRL claim likewise survives

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defendants’ motion for summary judgment. Kinneary v. City of New York, 601 F.3d 151, 158
(2d Cir. 2010).
CONCLUSION
Defendants’ motion for summary judgment is DENIED.
The Clerk is instructed to terminate the motion. (Doc. #39).
By September 18, 2017, the parties shall submit a Joint Pretrial Order in accordance with
paragraph 3(A) the Court’s Individual Practices.
All counsel shall attend a case management conference on September 25, 2017, at 2:15
p.m., at which time the Court expects to set a trial date and dates for pretrial submissions.
Dated: August 9, 2017
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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