Schneider v. Wal-Mart Stores, Inc. et al
Filing
62
OPINION & ORDER re: 52 MOTION for Summary Judgment . filed by Wal-Mart Stores East, LP, Wal-Mart Associates, Inc., Wal-Mart Stores, Inc. For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED in its ent irety. The Court respectfully directs the Clerk of the Court to terminate the motion at ECF No. 52 and enter judgment in favor of Defendants. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 1/23/2019) (rj) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RONALD W. SCHNEIDER,
Plaintiff,
No. 16-cv-2010 (NSR)
-against-
OPINION & ORDER
WAL-MART STORES, INC., WAL-MART
STORES EAST, LP, and WAL-MART
AS SOCIA TES, INC.,
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiff Ronald W. Schneider brings this action against Defendants Wal-Mart Stores,
Inc, Wal-Mart Stores East, LP, and Wal-Mart Associates, Inc and alleges violations of the
Americans with Disabilities Amendments Act of 2008, 42 U.S.C. §§ 12101 et seq. ("ADA") and
the New York State Human Rights Law, N.Y. Exec. Law§§ 290 et seq. ("NYSHRL"). (Second
Am. Compl., ECF No. 24.) Presently before the Comi is Defendants' Motion for Summary
Judgment (ECF No. 52) pursuant to Federal Rules of Civil Procedure Rule 56. (Defs.' Mem. of
Law in Supp. of Defs.' Mot. for Summ. J. pp. 10- 11, ECF No. 53.) For the following reasons,
Defendants' Motion for Summary Judgment is GRANTED.
BACKGROUND
The following facts are drawn from the parties' 56.1 submissions and the record, and they
are undisputed unless otherwise noted.
At all times relevant to this case, Plaintiff, an individual with cerebral palsy, was employed
by Defendants as an associate in the lawn and garden department. (Pl.'s 56.1
~
1, ECF No. 59.)
He reported directly to the depmiment manager, Darryl Underwood, who repmied to the store's
1
assistant managers. (Id.) Throughout his employment at Wal-Mart, Plaintiff was assisted by a job
coach supplied by Access, a non-profit entity providing vocational support to disabled individuals.
(Id. ¶ 2.) As part of the program, Plaintiff’s job coach visited him at work twice a month. (Id. ¶
3.) The job coach was not a Wal-Mart employee, but Wal-Mart does maintain a coaching policy.
To track employee improvement and discipline, Wal-Mart maintains a “Coaching” policy,
which provides for a first, second, and third written coaching and termination if an employee is
issued a fourth coaching within a twelve-month period. (Id. ¶ 4.) Wal-Mart also maintains an
Open Door policy through which any employee can challenge a disciplinary decision. (Id. ¶ 18);
(Davidson Tr. 37:1 – 17.)
On December 17, 2011, a Wal-Mart assistant manager, Colleen Cichon, issued Plaintiff his
first coaching for working 1.44 hours of overtime. (Id. ¶ 5.) Crystal Sparks, another Wal-Mart
assistant manager, issued Plaintiff a second coaching on December 20, 2011. (Id. ¶ 6.) On that
day, Ms. Sparks instructed Plaintiff to zone the seasonal department and noticed that Plaintiff had
not completed this task after some time. 1 (Id.) Parties dispute the circumstances and conditions
surrounding this request, but they agree that when Ms. Sparks located Plaintiff, he told her that he
was going to take his lunch break which Plaintiff asserts was mandatory to avoid working
overtime. (Id.) Plaintiff received his third coaching after an incident on February 12, 2012. (Id. ¶
7.) That day, Ms. Sparks had asked Plaintiff to zone the seasonal department and later noticed that
the department had not been properly zoned. (Id. ¶ 7); (Schneider Tr. 58:16 – 23; 59:21 – 24,
60:11 – 22); (Varghese Decl. Ex. 12, ECF No. 60.) When she approached Plaintiff about the issue,
he loudly stated “I’m doing returns, end of discussion” in front of customers. (Id. ¶ 7); (Schneider
Tr. 58:16 – 23; 59:21 – 24, 60:11 – 22); (Sparks Tr. 98:3 – 16.) Also, according to Plaintiff, Ms.
1
To “zone” means to clean up a section of the store and make sure that section is presentable to store
customers. (Defs.’ Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. p. 4 n.3, ECF No. 53.)
2
Sparks “belittle[d] the manner in which Mr. Schneider spoke, in clear reference to the speech
impediment created by his disability,” and she attempted to intimidate him. (Pl.’s 56.1 ¶ 7.)
On November 27, 2012, Plaintiff was working a shift attending to returns in the lawn and
garden department under standing instructions issued by Mr. Underwood. (Id. ¶ 8.) Christine
Beach, a Wal-Mart assistant manager, told Plaintiff to stop what he was doing and zone the
seasonal department. (Id.) Plaintiff responded that he would do so after he finished processing
returns. (Id.) Ms. Beach again told Plaintiff to zone, and he refused. (Id.) Ms. Beach then brought
Plaintiff to the manager’s office where, along with an assistant manager Daniel Davidson, she
again told him to zone the seasonal department. (Id. ¶ 9.) At some point, Plaintiff left the office
and pushed a cart out of his way. (Id. ¶ 11.) After observing Plaintiff’s behavior upon leaving the
office, Mr. Davidson called Plaintiff back in and informed him he was being written up. (Id. ¶
12.) As a result, Plaintiff received his fourth coaching and was terminated. (Id.)
The day after his termination, Plaintiff called his job coach, Julius Castro, and Mr. Castro
and Plaintiff went to the Wal-Mart store that same day to meet with co-manager Denise Ruocco
and Mr. Davidson. (Id. ¶ 13.) Mr. Castro asked that Plaintiff be reinstated, and Ms. Ruocco
instructed Plaintiff to contact the store manager, Bill Kirsch, because she lacked the authority to
overturn the discharge. (Id.) Mr. Castro arranged to meet with Mr. Kirsch, but upon arriving to
the meeting, Plaintiff and Mr. Castro learned that Mr. Kirsch had been called away to a different
store. (Id. ¶ 14.) Plaintiff spoke with Mr. Kirsch by telephone and was informed that his
termination would stand. (Id.) Mr. Castro did not follow up with Mr. Kirsch or otherwise
challenge Plaintiff’s dismissal. (Id. ¶ 15.)
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on August 29, 2013. (Second Am. Compl. ¶ 8.) On September 11, 2015,
3
the EEOC issued a determination that there is reasonable cause to believe that Defendants
discriminated against Plaintiff based on his disability, and on December 21, 2015 the Plaintiff
received a Notice of Right to Sue from the EEOC. (Id. ¶¶ 9 – 10.) Plaintiff initiated the action
presently before this Court on March 17, 2016. (ECF No. 1.)
LEGAL STANDARDS
A “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 pointing to evidence in the record,
“including depositions, documents [and] . . . affidavits or declarations,” id. at 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). The moving party may also support an assertion that
there is no genuine dispute by “showing . . . that [the] adverse party cannot produce admissible
evidence [in] support” of such a contention. Fed. R. Civ. P. 56(c)(1)(B). A fact is material if a
dispute over that fact could impact the outcome of the lawsuit under the governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving party fulfills its
preliminary burden, the onus shifts to the non-moving party to identify “specific facts showing
that there is a genuine issue for trial.” Id. (quotations and citations omitted).
If “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” a motion for summary judgment should fail. Id. at 258. 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 Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir.
2010) (quotations and citations omitted). The party asserting that a fact is genuinely disputed
must support their assertion by “citing to particular parts of materials in the record” or “showing
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that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P.
56(c)(1)(A)–(B). “Statements that are devoid of any specifics, but replete with conclusions, are
insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar
Coll., 196 F.3d 435, 452 (2d Cir. 1999).
The nonmoving party “may not rely on conclusory allegations or unsubstantiated
speculation.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotations and
citations omitted). Similarly, “a party cannot create an issue of fact by submitting an affidavit in
opposition to summary judgment that contradicts prior deposition testimony.” Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) (citing Perma Research and Dev. Co. v.
Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (noting that such affidavits “greatly diminish the
utility of summary judgment as a procedure for screening out sham issues of fact”). However,
the mere fact that a non-movant’s factual allegations in opposition are “self-serving” does not
automatically render them insufficient to defeat summary judgment. Danzer v. Norden Sys.,
Inc., 151 F.3d 50, 57 (2d Cir. 1998). Instead, summary judgment should be granted when a party
“fails to make a showing sufficient to establish the existence of an element essential to that
party’s case,” where “that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
In reviewing the record, “the judge’s function is not himself to weigh the evidence and
determine the truth of the matter,” nor is it to determine a witness’s credibility. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, “[t]he inquiry performed is the threshold
inquiry of determining whether there is the need for a trial.” Id. at 250. If the Court finds that
one party to a case has “no real support for its version of the facts,” a motion for summary
judgment should be granted. Community of Roquefort v. William Faehndrich, Inc., 303 F.2d
5
494, 498 (2d Cir. 1962).
DISCUSSION
I.
Timeliness of NYSHRL Claims
Claims arising under the NYHRL, both NYSHRL and NYCHRL, are subject to a three-
year statute of limitations. See George v. Prof’l Disposables Int’l, Inc., 221 F. Supp. 3d 428, 436
(S.D.N.Y. 2016). Although the Second Circuit has not yet decided whether the filing of a charge
with the EEOC tolls the statute of limitations on NYSHRL claims, numerous courts in this
Circuit have determined that filing an EEOC charge does toll those claims. Allen v. N.Y. City
Dep’t of Envtl. Prot., 51 F. Supp. 3d 504, 511 (S.D.N.Y. 2014); see, e.g., Cameron v. N.Y. City
Dep’t of Educ., No. 15-CV-9900(KMW), 2018 WL 1027710, at *12 (S.D.N.Y. Feb. 21, 2018)
(“In sum, the cases [the d]efendants cite do not overcome the clear trend in this district that the
statute of limitations on NYCHRL actions is tolled during the pendency of a complaint filed with
the EEOC.”); Guity v. Uniondale Union Free Sch. Dist., No. 15-CV-5693(SJF)(AKT), 2017 WL
9485647, at *9 (E.D.N.Y. Feb. 23, 2017); Senecal v. B.G. Lenders Serv. LLC, 976 F. Supp. 2d
199, 230 (N.D.N.Y. 2013); Harris v. NYU Langone Med. Ctr., No. 12-CV-454(RA)(JLC), 2013
WL 3487032, at *23 (S.D.N.Y. July 9, 2013) (“[N]umerous courts have found that filing a
charge with the EEOC is sufficient to toll the statute of limitations on related NYSHRL and
NYCHRL claims.”).
Defendants argue that the Second Circuit “signaled . . . that an NYSHRL claim is not
tolled during the pendency of proceedings before the EEOC” in Castagna v. Luceno, 744 F.3d
254 (2d Cir. 2014). (Defs.’ Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. pp. 10 – 11.)
However, Castagna is not anagolous to the case currently before the Court. In Castagna, the
Second Circuit held that the filing of an EEOC charge does not toll the time for filing state tort
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claims, but it did not address whether the same is true for NYSHRL claims. Castagna, 744 F.3d
at 258. Defendants would have this Court extend this Castagna holding to NYSHRL claims as
well. However, there is no support in the Castagna opinion for such an interpretation, and at
least one court has previously rejected Defendants’ exact argument. Cameron, 2018 WL
1027710, at *12 (holding that the NYSHRL claim tolled with the filing of the EEOC claim and
rejecting Defendants’ argument that Castagna suggests that an EEOC complaint does not toll the
statute of limitations for claims under the NYSHRL).
Consistent with the clear trend in this Circuit, the Court holds that the filing of the EEOC
tolled Plaintiff’s NYSHRL claims and that those claims are timely. See id.
II.
ADA and NYSHRL claims
“A claim of disability discrimination under the [NYSHRL] is governed by the same legal
standards as govern federal ADA claims.” Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 184
n.3 (2d Cir. 2006) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 n.1 (2d Cir.
2000). 2 Therefore, the Court will analyze Plaintiff’s ADA and NYSHRL claims together, below.
A.
Discriminatory Termination
On summary judgment, the plaintiff has a de minimus burden to establish a prima facie
case of discrimination. Duprey v. Prudential Ins. Co. of Am., 910 F. Supp. 879, 885 (N.D.N.Y.
1996). To establish this prima facie case, a plaintiff must show that: (1) his employer is subject
to the applicable law; (2) he suffers from a disability within the meaning of the applicable law;
(3) he was qualified and able to perform the essential functions of his job with or without
reasonable accommodation; and (4) he suffered an adverse employment action, which includes
2
The primary differences between the ADA and NYSHRL with respect to disability discrimination are
definitional and relate to the definition of disability. See Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 253
– 54 (E.D.N.Y. 2015). The parties here do not dispute that Plaintiff has a disability or any other definitional issues.
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termination, because of his disability. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.
2006); Ryan v. Grae & Rybicki, 135 F.3d 867, 869 – 70 (2d Cir. 1998). If there is no direct
evidence of a discriminatory discharge, the claim will be analyzed under the McDonnell Douglas
burden-shifting framework. McMillan v. City of New York, 711 F.3d 120, 129 (2d Cir. 2013);
Anderson v. Nat’l Grid, PLC, 93 F. Supp. 3d 120, 140 (E.D.N.Y. 2015); see generally
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Once the Plaintiff has established a prima facie case, under McDonnell Douglas, the
burden shifts to the defendant to introduce admissible evidence of a “legitimate nondiscriminatory reason for the discharge.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d
92, 96 (2d Cir. 2009). If the defendant proffers a non-discriminatory reason for termination, then
summary judgment for the defendant is appropriate unless the plaintiff can demonstrate that the
proffered reason for termination is pretext for discrimination. McBride, 583 F.3d at 96.
Here, parties do not dispute that Plaintiff has satisfied the first three elements of a prima
facie case; whether Plaintiff meets the fourth element is in dispute. To satisfy this element,
Plaintiff has a “de minimis burden to produce direct or circumstantial evidence that would lead a
reasonable fact-finder to conclude that her discharge occurred under circumstances giving rise to
an inference of discrimination.” Duprey v. Prudential Ins. Co. of Am., 910 F. Supp. 879, 885
(N.D.N.Y. 1996). Evidence leading to the inference of discrimination may include
discriminatory comments made by the defendant relating to a disability, failure to take actions
required for a disabled employee to return to work, or preferential treatment of employees
similarly situated to the plaintiff who are not members of the plaintiff’s protected class. 3
Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997); Prindle v. City of
3
There is mention that Mr. Kirsch overturned some termination decisions for other employees, but there is
no evidence that those employees were similarly situated to Plaintiff. (Davidson Tr. 43:6 – 21.)
8
Norwich, No.15-CV-1481(GTS)(DEP), 2018 WL 1582429, at *14 (N.D.N.Y. Mar. 27, 2018);
Wasley-Dickson v. Warwick Valley Cent. Sch. Dist., 973 F. Supp. 2d 386, 403 (S.D.N.Y. 2013);
Jackson v. Heidelberg LLC, 02-CV-6536, 2005 WL 735961, at *6 (W.D.N.Y. Mar. 31, 2005).
Here, Plaintiff presents sufficient evidence for a reasonable jury to find that he was
terminated in circumstances giving rise to the inference of discrimination. Specifically, from the
evidence in the record, a reasonable jury could conclude that Defendants applied their Open
Door Policy in a discriminatory manner. Mr. Davidson, Mr. Kirsch, and Ms. Beach testified that
when an employee wants to meet with a co-manager or a store manager to challenge a
disciplinary action, the managers are required to meet with the employee as part of the Open
Door Policy. (Davidson Tr. 41:18 – 23); (Kirsch Tr. 60:5 – 13); (Beach Tr. 53:12 – 21.) The
purpose of this policy is so that “every associate can, if they feel they are being mistreated . . . go
up to the highest manager and be heard.” (Beach Tr. 54:10 – 16.) According to testimony from
several Wal-Mart managers, multiple Wal-Mart associates, like Plaintiff, contested coachings
and terminations under this policy; they were permitted to meet with management, their
terminations were investigated, and on some occasions those terminations were overturned.
(Kirsch 60:17 – 25); (Davidson Tr. 38:5 – 17; 41:1 – 11; 42:18 – 22; 43:6 - 21); (Beach Tr. 54:8
– 25; 55:1 – 21.); (Sparks 52:18 – 25.) Mr. Kirsch testified that he always conducted an
investigation if an employee contested his or her termination and would overturn the termination
if he thought any of the coachings were not fair. (Kirsch Tr. 62:9 – 23, 63:7 – 19.) Here,
Plaintiff contested his termination when he consulted with his job coach and requested the
meeting about his termination with Mr. Kirsch. (Kirsch Tr. 167:10 – 14.) However, there is no
evidence that Mr. Kirsch investigated the termination or any of the previous coachings; Plaintiff
called Mr. Kirsch shortly after Plaintiff was terminated and was merely told that the termination
9
would stand. (Schneider Tr. 198:19 – 21.) A reasonable jury could conclude that this treatment
is inconsistent with Walmart’s Open Door policy and the treatment of other associates, which
was in line with the policy. 4
A plaintiff is only required to meet a “minimal and de minimus” burden to state a prima
facie case at the summary judgment stage. Berube v. Great Atl. & Pac. Tea Co., Inc., 348 F.
App’x 684, 686 (2d Cir. 2009) (internal quotation marks omitted). Plaintiff has satisfied that
minimal burden.
Next, the Court will examine whether Defendants’ stated reason for Plaintiff’s
termination, his accumulation of four written coachings in a twelve-month period, is mere
pretext for discrimination. Pretext may be demonstrated by additional evidence that the
employer’s proffered reason is not credible or by reliance on the evidence supporting the prima
facie case alone. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994). “The
defendant’s burden is [ ] light. The employer need not persuade the court that it was motivated
by the reason it provides; rather, it must simply articulate an explanation that, if true, would
connote lawful behavior.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998)
(emphasis omitted). Disciplinary action based on poor performance or failure to follow
reasonable workplace rules is not indicative of a pretext for disability discrimination. See
4
Plaintiff also asserts that Defendants made discriminatory comments to and about Plaintiff. Specifically,
Plaintiff cites to (1) an incident on December 20, 2011 in which Ms. Sparks told Plaintiff that an area of the store
needed “Ron Love” when she asked him to zone; (2) an incident on February 12, 2012 in which Ms. Sparks
pretended not to hear him to provoke and intimidate Plaintiff, and (3) Ms. Beach’s regular practice of telling him
that his best work was not good enough. (Schneider Tr. 56:8 – 9, 19 – 24; 57:1 – 10, 58:21 – 23, 59:4 – 14.)
Assuming that the Plaintiff presented sufficient evidence from which a reasonable jury could conclude that these
comments occurred, isolated comments, like the first two described above, “do not lead to an inference of
discriminatory intent.” Luka v. Bard Coll., 263 F. Supp. 3d 478, 487 (S.D.N.Y. 2017). There is no evidence that the
comments from Ms. Sparks were more than isolated comments. Additionally, the third set of comments appear to
relate to Plaintiff’s job performance, and there is no other evidence in the record to suggest that these comments
were discriminatory. See Kho v. N.Y. and Presbyterian Hosp., No. 16-CV-5910(RA), 2018 WL 4759739, at *10
(S.D.N.Y. Sept. 30, 2018). Drawing all reasonable inferences in Plaintiff’s favor, Fincher v. Depository Tr. &
Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010), the Court concludes that there is insufficient evidence from which
a reasonable jury could conclude that these comments created an inference of discrimination.
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Jackson v. Nor Loch Manor HCF, 134 F. App’x 477, 478 (2d Cir. 2005) (affirming the grant of
summary judgment for the defendant because the record indicated that the plaintiff was
terminated due to her failure to follow instructions and employment policies); Molina v. City of
Rochester, No13-CV-6607, 2017 WL 1194493, at *10 (W.D.N.Y. Mar. 30, 2017) (holding that
the record showed that the plaintiff was terminated due to his poor performance and misconduct
at work); Missick v. City of New York, 707 F. Supp. 2d 336, 350 (E.D.N.Y. 2010) (holding that
evidence of satisfactory prior performance, subjection to a disparate level of scrutiny, and a
pattern of personal slights was not sufficient to show pretext for her negative performance
reviews).
Here, Plaintiff does not dispute that he engaged in the workplace misconduct which led to
each coaching. On December 17, 2011, Plaintiff received his first coaching which was for
accruing over one hour of overtime without permission from management. (Varghese Decl. Ex.
10.) Plaintiff testified that he was aware of Defendants’ overtime policy prior to the day he
worked overtime and does not dispute that he worked overtime that day. (Schneider Tr. 119:10 –
24; 120:1 – 6, 19 – 24; 121:1 – 4.). Plaintiff was issued a second coaching on December 20,
2011 for failure to follow instructions when told to zone the seasonal area by 7 PM. (Varghese
Decl. Ex. 11.) While Plaintiff testified that he took his lunchbreak before 7 PM to avoid working
overtime, he does not dispute that he was told to zone the area by 7 PM and failed to do so.
(Schneider Tr. 134:13 – 15; 137:22 – 24.) Plaintiff received his third coaching on February 12,
2012. (Varghese Decl. Ex. 12.) In that incident, Plaintiff raised his voice with his managers
when they asked him to zone the seasonal area because he was currently working on processing
returns and wanted to complete that task. (Schneider Tr. 58:16 – 23; 59:21 – 24, 60:11 – 22);
(Sparks Tr. 98:3 – 16, 132:12 – 23.) Plaintiff does not dispute these facts. On November 27,
11
2012, Plaintiff received his fourth written coaching for insubordination and aggressive behavior
on the sales floor and was terminated, consistent with Defendants’ policy of terminating
employees upon receipt of their fourth coaching. (Beach Tr. 145:23 – 25; 147:3 – 5; 149:15 – 20;
153:20 - 23); (Davidson Tr. 80:18 – 22). Plaintiff testified that he engaged in the misbehavior
which led to the discipline. He heard Ms. Beach direct him to zone seasonal, he refused, and he
pushed a cart when he left the office while he was upset. (Schneider Tr. 177:20 – 24; 178:1 – 8;
180:3 – 13; 186:4 – 5; 190:10 – 20; 191:1 – 2.)
Plaintiff attempts to call Defendants’ reason for terminating him into question. First, he
points to his nineteen years as a Wal-Mart employee prior to his termination. However, “[t]he
mere fact of past satisfactory performance, followed by negative feedback, is not suggestive of
impermissible animus.” Missick v. City of New York, 707 F. Supp. 2d 336, 350 (E.D.N.Y. 2010).
Second, Plaintiff testified that he endured comments “demonstrating a clear bias against
individuals with cerebral palsy.” (Pl.’s Opp’n, p. 20, ECF No. 58.) Plaintiff claims that on one
occasion a manager pretended not to hear him in a way that made him feel intimidated, that the
same manager told him once that an area he was assigned to zone could use some “Ron love,”
and that another manager made routine comments about his speed and the quality of his work. 5
(Schneider Tr. 56:8 – 9, 19 – 24; 57:1 – 10, 58:21 – 23, 59:4 – 14.) None of these comments
either addressed or appeared to allude to Plaintiff’s disability, and the record contains nothing to
suggest that they were discriminatory. See Paul v. Lenox Hill Hosp., No 13-CV1566(CBA)(LB), 2016 WL 4775532, at *13 (E.D.N.Y. Jan. 15, 2016) (holding that, in the
5
Defendants dispute making these statements, (Sparks Tr. 81:20 – 25), but this dispute is immaterial
because even if the Defendants made the statements, a reasonable jury could not determine that they were evidence
of discrimination for the reasons stated above. Moreover, the only evidence supporting the large majority of the
alleged discriminatory comments is Plaintiff’s testimony in which he only speculates that the comments were
motivated by discriminatory intent. There is no evidence other than Plaintiff’s conjecture that the statements were
discriminatory. This is not enough to support an inference of discrimination. Brown v. Northrop Grumman Corp.,
No. 12-CV-1488(JS)(GRB), 2014 WL 4175795, at *7 (E.D.N.Y. Aug. 19, 2014).
12
absence of other evidence of discrimination, the defendant’s comments that about wanting a
“different face” for the workplace were benign).
Plaintiff’s testimony is only evidence of isolated incidents and stray remarks, at most 6
Plaintiff provides no further evidence of a discriminatory culture or discrimination directed at
Plaintiff to support a reasonable finding that Defendants’ reason for terminating him was mere
pretext. “This Court has repeatedly held that ‘stray remarks of a decision-maker, without more,
cannot prove a claim of employment discrimination.’ ” Adams v. Master Carvers of Jamestown,
Ltd., 91 F. App’x 718, 722 (2d Cir. 2004) (quoting Abdu–Brisson v. Delta Air Lines, Inc., 239
F.3d 456, 468 (2d Cir. 2001)).
There is no evidence from which a reasonable jury could conclude that his termination
was pretext for discrimination. Accordingly, the Court must grant Defendants summary
judgment on Plaintiff’s discriminatory discharge claims.
B.
Failure to Accommodate
A plaintiff establishes a prima facie claim for disability discrimination based on a failure
to accommodate by showing that (1) the plaintiff is a person with a disability as defined by the
ADA or NYSHRL; (2) the employer is covered by the relevant statute and had notice of the
plaintiff’s disability; (3) the plaintiff could perform the essential functions of the job with
reasonable accommodation; and (4) the employer refused to make those reasonable
accommodations. McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir.
2009) (quoting Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2004)). The plaintiff
bears the burden of showing that “the accommodation exists that permits her to perform the job’s
essential functions.” Jackan v. N.Y. State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000). If
6
See supra n.4.
13
the plaintiff satisfies this burden, the defendant has the burden of proving that the proposed
accommodation is not reasonable. Id. Under the ADA, reasonable accommodation may include
making facilities used by employees readily accessible to those individuals with disabilities, job
restructuring, reassignment, adjustment of examinations or policies, the provision of qualified
readers, and “other similar accommodations.” 42 U.S.C. § 12111(9). The NYSHRL has a
similar interpretation of reasonable accommodation: “provision of an accessible worksite,
acquisition or modification of equipment, support services for persons with impaired hearing or
vision, job restructuring and modified work schedules; provided, however, that such actions do
not impose an undue hardship on the business, program or enterprise of the entity from which
action is requested.” N.Y. Exec. Law § 292(21-e).
Parties do not dispute the first two elements of the analysis. They dispute whether
Plaintiff required any accommodation in order to perform the essential functions of his job and
whether Defendants failed to provide that accommodation. According to Plaintiff, due to his
cerebral palsy, he had difficulty understanding instructions and was slower than other employees
to complete tasks. (Schneider Tr. 70:12 – 15; 103:8 – 21); (Pl.’s 56.1 ¶¶ 10, 39, 41 & 45.) To
accommodate these issues, he required extra time, clear and repeated instructions, and the
services of a job coach. (Id.) However, Defendants correctly point out that the Second
Amended Complaint does not allege that Wal-Mart denied Plaintiff an accommodation in the
form of modification to supervisory methods and that Plaintiff’s reasonable accommodation
claim is limited to those relating to his job coach. 7 (Defs.’ Reply p. 4, ECF No. 56.) “It is well
7
Plaintiff states that as a result of his disability he requires extra time to process instructions and help
understanding interpersonal communication (Second Am. Compl. ¶ 20.) He also argues that on at least one occasion
a manager did not give him sufficient time to process a situation or perform a task. (See id. ¶ 60.) However, all of
his accommodation-related allegations in the Second Amended Complaint focused on Wal-mart’s alleged failure to
provide him with sufficient accommodation related to his job coach and did not concern any accommodation
relating to management style. Even if Plaintiff had adequately asserted that Defendants failed to accommodate his
disability by failing to provide him with adequate time or clear instructions, those accommodations are not
14
settled that a litigant may not raise new claims not contained in the complaint in opposition to a
motion for summary judgment.” Mediavilla v. City of New York, 259 F. Supp. 3d 82, 106
(S.D.N.Y. 2016); see Avillan v. Donahoe, 483 F. App’x 637, 639 (2d Cir. 2012) (“The district
court did not err in disregarding allegations Avillan raised for the first time in response to
Potter's summary judgment motion.”). Therefore, the Court will only consider Plaintiff’s failure
to accommodate claim as it relates to his job coach.
In the Second Amended Complaint, Plaintiff states that Defendants failed to
accommodate his disability by failing to consult or engage in any discussion with his job coach
about any of the written warnings he received in 2011 and 2012 or about the decision to
terminate Plaintiff. (Second Am. Compl. ¶¶ 92, 107.) Under the EEOC guidelines, a job coach
is a “professional who assists individuals with severe disabilities with job placement and job
training.” E.E.O.C. Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities (Mar. 25, 1997), 1997 WL 34622315, at *13 n.63. Plaintiff does not
allege, nor does the record support, that Defendants interfered with the job coach assisting
Plaintiff in job placement or training. In fact, Plaintiff does not allege that Defendants interfered
with the job coach in any way that would have affected his ability to perform his essential job
functions. A disciplinary process hardly requires any action on the part of the disciplined
reasonable. “An employer’s duty to accommodate an employee’s disability is ordinarily activated by a request from
the employee, and the request must be ‘sufficiently direct and specific’ to give the employer notice of the
needed accommodation.” Nadeau v. Mary Hitchcock Mem’l Hosp., No. 14-CV-64, 2016 WL 3248266, at *9 (D.Vt.,
June 13, 2016) (quoting Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 129 (1st Cir. 2009)). “The employer has no
duty to divine the need for a special accommodation where the employee merely makes a mundane request for a
change at the workplace.” Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001). A request for clear
instructions and extra time is vague, particularly in the dynamic context of retail, where employees are assigned to a
variety of tasks with time sensitive deadlines. See Nugent v. St. Luke's/Roosevelt Hosp. Ctr., No. 05–CV–5109, 2007
WL 1149979, at *21 (S.D.N.Y. Apr. 18, 2007) (holding that the vague request for “a little extra time . . . as well as
understanding and assistance” was not a request for a reasonable accommodation). There is no evidence in the
record to suggest that Plaintiff made a direct or specific request to his employers for an accommodation in the form
of modification of supervisory methods.
15
employee and any required action by the employee, while related to their personal employment,
could not be related to the performance of an essential job function. See Ott v. H & M Hennes &
Mauritz LP, No. 14-CV-556, 2015 WL 6393821, at *9 (E.D. Wis. Oct. 22, 2015)(“Because there
is no evidence that communicating during the [termination] meeting was an essential function of
[the plaintiff’s] job, [the defendant] did not violate the ADA when it denied his request for an
interpreter at the meeting.”); Novella v. Wal–Mart Stores, Inc., 226 F. App’x 901, 903 (11th Cir.
2007) (holding that communication at a termination meeting was not an “essential function” of
the employee's job and thus employer did not violate the ADA by failing to provide a deaf
employee a sign language interpreter for a termination meeting).
The cases Plaintiff cites for support that failing to consult the job coach in the discipline
process denied Plaintiff “an essential accommodation” are easily distinguishable from the matter
before the Court. 8 Glaser v. Gap, Inc. concerned a plaintiff who was denied a job coach during
his interview and never received a job coach throughout his employment. 994 F. Supp. 2d 569,
577 (S.D.N.Y. 2014). Similar to the plaintiff in Glaser, the plaintiff in Menchaca v. Maricopa
Community College District was denied job coach. 595 F. Supp. 2d 1063 1072 – 73 (D. Az.
2009). Contrastingly, Plaintiff in this case enjoyed the services of a job coach throughout his
employment. (Schneider Tr. 35:21 – 24, 36:1 – 4; 37:13 – 19; 41:16 – 24; 42:1 – 11.) Plaintiff
cites E.E.O.C. v. Dollar General Corp. to support the idea that a temporary job coach can be
considered a reasonable accommodation, but the court specified in that case that this referred to a
job coach for temporary training purposes. 252 F. Supp. 2d 277, 292 – 93 (M.D.N.C. 2003).
None of these cases involve a court finding that the involvement of a job coach in a disciplinary
8
Plaintiff also misstates the standard. (Pl.’s Opp’n p. 12, ECF No. 58.) The standard is not whether the
employer provided the job coach with sufficient information to allow the job coach to best counsel Plaintiff, but
whether the employer’s failure to include the job coach in the disciplinary process before and during the discipline
prevented Plaintiff from performing essential job functions.
16
process is a reasonable accommodation. Based on the available case law, the Court determines
that employers are not required to consult with job coaches before disciplinary action or to
otherwise involve them in the disciplinary process. As the record does not contain sufficient
evidence from which a reasonable factfinder could conclude that Defendants denied Plaintiff a
reasonable accommodation, Defendants’ motion for summary judgment on the failure to
accommodate claim must be granted.
C.
Failure to engage in an interactive process regarding a reasonable
accommodation
Plaintiff asserts that Defendants failed to engage in a good faith interactive process as
required under the ADA and NYSHRL prior to failing to involve the job coach in disciplinary
discussions. (Second Am. Compl. ¶¶ 98, 113.)
However, as discussed above, Plaintiff’s requested accommodation, including his job
coach in the disciplinary process, was not a request for a reasonable accommodation. (See supra
Part II(B).) As a matter of law, Defendants are not required to engage in an interactive process if
there is no evidence that the accommodation is possible. McBride v. BIC Consumer Prods. Mfg.
Co., Inc., 583 F.3d 92, 100 – 01 (2d Cir. 2009). Plaintiff presents no evidence from which a
reasonable jury could conclude that including the job coach in Wal-Mart’s disciplinary process
was possible. There is no evidence in the record that Plaintiff’s job coach had ever been
permitted to participate in disciplinary decisions or that Plaintiff ever sought out an interactive
process to involve his job coach in disciplinary decisions.
Additionally, “the ADA imposes no liability for an employer’s failure to explore
alternative accommodations when the accommodations provided to the employee were plainly
reasonable.” Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 98 (2d Cir. 2015). Wal-Mart did not
17
interfere with the job coach's work as Plaintiffs job coach; it simply did not involve the job
coach in disciplinary decision-making because that task is outside of the job coach's
responsibilities and is also not a reasonable accommodation. Julius Castro, Plaintiffs job coach,
testified that his position required him to go to Plaintiffs worksite to observe Plaintiff at work
and then met with Plaintiff afterwards to discuss any issues or problems. (Castro Tr. 16:22 - 24;
17:1 - 3.) Plaintiff does not dispute that Wal-Mart allowed his job coach to continue performing
the functions of a job coach throughout Plaintiffs employment, including Mr. Castro's visits to
Plaintiff at Wal-Mart a couple of times a month. (Schneider Tr. 35:21 - 24, 36:1 - 4; 37:13 - 19;
41 :16 -24; 42:1 - 11.)
In the absence of any evidence from which a reasonable jury could conclude that
Defendants failed to engage in an interactive process, Defendants are granted summary judgment
on those claims. 9
CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED in
its entirety. The Court respectfully directs the Clerk of the Court to terminate the motion at ECF
No. 52 and enter judgment in favor of Defendants.
January Z3 , 2019
White Plains, New York
Dated:
SO ORDERED:
9
Defendants also seek summary judgment on Plaintiffs hostile work environment claims under ADA and
NYSHRL, to the extent that Plaintiff intended to assert such claims. (Defs.' Mem. of Law in Supp. of Defs.' Mot.
for Summ. J. pp. 24 25.) Plaintiff did not address any hostile work environment claim in his opposition. "[A]
partial response arguing that summary judgment should be denied as to some claims while not mentioning others
may be deemed an abandonment of the unmentioned claims." Jackson v. Fed Express, 766 F.3d 189, 195 (2d Cir.
2014). Therefore, the Court deems any hostile work environment claim to be abandoned.
18
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