Abbott v. Wyoming County Sheriff's Office
Filing
61
DECISION AND ORDER granting in part and denying in part 39 Motion for Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 09/26/2019. (CDH)
FILED
'
SEP 2 6 2019
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
'tv^^X-LPEWENGOl^
^=^5feDISTRlCl
CYNTHIA ABBOTT,
Plaintiff,
DECISION AND ORDER
I:I5-CV-0053I EAW
V.
WYOMING COUNTY SHERIFF'S
OFFICE,
Defendant.
INTRODUCTION
Plaintiff Cynthia Abbott("Plaintiff) brings this action against defendant Wyoming
County Sheriffs Office ("Defendant"), alleging that she was discriminated against in her
employment due to disability and retaliated against when she complained of the
discrimination. (Dkt. 1). Presently before the Court is Defendant's motion for summary
judgment. (Dkt. 39). For the reasons that follow, the Court grants in part and denies in
part Defendant's motion.
FACTUAL BACKGROUND
The following facts are taken from Defendant's Statement of Undisputed Material
Facts (Dkt. 39-4), Plaintiffs responses to Defendant's statement (Dkt. 49), Plaintiffs
Counterstatement of Material Facts {id.), Defendant's responses to Plaintiffs
counterstatement(Dkt. 56-4), and the evidenee submitted by the parties in support thereof.
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Unless otherwise noted, these facts are undisputed. As is required at this stage of the
proceedings, the Court construes all evidence in the light most favorable to Plaintiff.
Plaintiff was diagnosed with epilepsy as a child. (Dkt. 48 at ^ 3). She obtained a
bachelor of arts degree in criminal justice in May 2005, and was hired as a part-time
corrections officer by Defendant in September 2009. (Dkt.49 at
1, 3; Dkt. 56-4 at
1,
3). At that time, Farris Heimann ("Heimann") was the sheriff and Gregory Rudolph
("Rudolph")was the undersheriff. (Dkt. 39-4 at
13-14; Dkt.49 at 32). As a requirement
ofher employment,Plaintiff underwent a physical examination on September 3,2009, and
was certified as "[f]it for duty as described by employer with significant pre-existing
condition[.]" (Dkt. 49 at ^ 4; Dkt. 56-4 at ^ 4).
In March 2010, Plaintiff began a mandatory correctional officers' academy training
program. (Dkt. 49 at ^ 6; Dkt. 56-4 at T| 6). On March 21, 2010, during the defensive
tactics portion ofthe training academy. Plaintiff suffered a seizure during which she acted
confused and spoke with slurred speech. (Dkt. 49 at 6; Dkt. 56-4 at ^ 6). Then-sergeant
Matthew Case("Case") was informed of Plaintiffs condition and relayed the information
to Heimann; Case and Heimann had "multiple conversations about how to handle the
situation." (Dkt. 49 at ^ 7; Dkt. 56-4 at ^ 7).
Plaintiff claims to have had a meeting with Case after her seizure in which he
informed her that she was going to be terminated for having failed to complete the
defensive tactics training. (Dkt. 49 at
9). Defendant denies that this conversation
occurred, and notes that Case testified at his deposition that he did not recall any such
meeting or conversation. (Dkt. 56-4 at ^ 9). Plaintiff further claims to have had a meeting
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with Rudolph wherein he angrily said "don't you think we would have liked to have known
that you had seizures" and told her that she should lose her position. (Dkt.48 at ^ 16; Dkt.
49 at ][ 11). Rudolph testified at his deposition that he did not recall discussing the issue
ofseizures with Plaintiff. (Dkt. 56-4 at ^ 11). Ultimately,Plaintiff was allowed to complete
the defensive tactics training at the training academy in Chautauqua County. (Dkt. 49 at
tn 17, 20; Dkt. 56-4 at Ti 17, 20).
In the early fall of 2012, Plaintiffs epilepsy medication was adjusted by her
physician. (Dkt. 49 at ^ 20; Dkt. 56-4 at ^ 20). As a result of this medication change.
Plaintiff experienced a seizure in October 2012, while at work. (Dkt. 49 at ^ 20; Dkt. 56-
4 at ^ 20). The parties dispute whether Plaintiff reported this seizure to the officer in
charge—Plaintiff testified that she made a contemporaneous report, while Defendant
claims that it first became aware of the October 2012 seizure during Plaintiffs 50-h
examination' on December 17, 2013. (Dkt. 49 at
21-22; Dkt. 56-4 at
21-22). On
November 1, 2012, Rudolph sent an email to Heimann stating that he had "watched the
whole Shr shift of Abbott's on the dayshift ofthe 21®'from the Dorm Post camera" and that
he "did not see any indication of a medical problem." (Dkt. 49 at 23; Dkt. 56-4 at ^ 23).
In December 2012, Heimann decided to retire from Defendant and in January 2013,
he informed Rudolph that Rudolph would be appointed sheriffupon Heimann's retirement.
(Dkt. 49 at
24-25; Dkt. 56-4 at
24-25). Beginning in March 2013, Heimann and
Rudolph had conversations in which Heimann encouraged Rudolph to become involved in
'
New York General Municipal Law § 50-h provides for a pre-lawsuit examination
where an individual makes a claim against a municipality.
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employment decisions. (Dkt. 49 at
26; Dkt. 56-4 at ^ 26). In June 2013, Rudolph
informed Heimann that he wanted to appoint Case as jail administrator, and Heimann
approved the decision. (Dkt. 49 at ^ 29; Dkt. 56-4 at ^ 39). Case was appointed without
an interview. (Dkt. 49 at ^ 29; Dkt. 56-4 at ^ 29).
For more than two decades prior to June 2013, a seniority system had been used by
Defendant to fill full-time corrections officer positions. (Dkt.49 at^ 31; Dkt. 56-4 at^ 31).
Interviews were not held—instead, the most senior part-time corrections officer "would
simply be informed by the Sheriff that they had been promoted to full-time status." (Dkt.
49 at 31; Dkt. 56-4 at ^31). On June 19, 2013, Samantha James("James") was selected
to fill a full-time corrections officer position pursuant to this seniority system. (Dkt. 49 at
^ 33; Dkt. 56-4 at ^ 33). James' appointment took effect July 6, 2013. (Dkt. 49 at ^ 33;
Dkt. 56-4 at ^ 33). The parties dispute whether Rudolph was involved in James'
appointment as a full-time corrections officer—Heimann testified at his deposition that it
was Rudolph's decision to promote James {see Dkt. 50-1 at 371), while Rudolph testified
that he was not involved in James' appointment {see Dkt. 51 at 116).
On July 2,2013, Case,in his new role as jail administrator, emailed the three female
part-time corrections officers to notify them of an upcoming open position for a full-time
corrections officer. (Dkt. 49 at ^ 35; Dkt. 56-4 at ^ 35). Plaintiff was then the most senior
part-time corrections officer. (Dkt. 48 at ^ 23). However, the seniority system was not
followed in filling this position. Instead, Rudolph tasked Case with developing an
interview process. (Dkt. 49 at ^ 40; Dkt. 56-4 at ^ 40). In developing this interview
process. Case worked with Denise Morley ("Morley"), Defendant's director of human
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resources. (Dkt. 49 at
49-50; Dkt. 56-4 at
49-50). On July 8, 2013, Morley sent an
email to Heimann, copied to Rudolph, in which she stated that she had "been talking with
Matt Case about his interviews and the issue of one ofthe PT CD's [sic] who has epilepsy
and has applied for full time." (Dkt. 53 at 364). Morley stated that her understanding was
that Plaintiff had asked not to be placed in the control room, and that "we really should
have medical documentation from her physician asking ifshe can perform all ofthe duties
with or without reasonable accommodation." {Id.)} In that same email, Morley discussed
modifying the job description for corrections officers to include "[tjhings like escorting
inmates and any other kind ofinmate contact either on their own or with other CO's [sic]."
{Id.).
Case ultimately developed an interview questionnaire with two parts—a job
interview evaluation form requiring the interviewer to rate the candidate in various areas,
and a list of nine questions for the job candidate. (Dkt. 49 at ^ 56; Dkt. 56-4 at ^ 56). One
of the nine questions was "are you able to perform all aspects of your duties ... if you
answer NO, then please note what accommodations would be needed to work in those
areas." (Dkt. 49 at f 56; Dkt. 56-4 at ]| 56).
Plaintiff was interviewed by Rudolph and Case for the open full-time corrections
officer position on July 9, 2013. (Dkt. 49 at
61, 63; Dkt. 56-4 at
61, 63). At that
time, she had been employed as a part-time corrections officer for almost four years. (Dkt.
^
Plaintiff denies ever having asked not to be placed in the control room. {See Dkt.
48 at 31).
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49 at ^ 61; Dkt. 56-4 at T| 61). Plaintiff claims that Rudolph asked her questions about her
epilepsy during the interview. (Dkt. 48 at ^ 33).
The parties dispute Plaintiffs employment record—^Plaintiff claims that prior to
July 2013, she had received only one warning notice, on September 18, 2010, for having
called in 50 minutes before a seheduled shift due to a sick child, rather than one hour, as
required by policy(Dkt.49 at^ 62), while Defendant takes the position that Plaintiff called
in only 40 minutes ahead of her shift and that she also received a note to file for failing to
report to work on a separate occasion in September 2010(Dkt. 56-4 at 62).
On July 10, 2013, Cheryl Lindsey ("Lindsey") was interviewed for the full-time
corrections officer position by Rudolph, Case, and Sergeant Horton ("Horton"). (Dkt. 49
at
68; Dkt. 56-4 at ]| 68). Lindsey had only two years of experience as a corrections
officer and possessed a degree in cosmetology. (Dkt. 49 at ^ 69; Dkt. 56-4 at ^ 69).
On July 11, 2013, Teresa Jagusiak ("Jagusiak") was interviewed for the full-time
corrections officer position by Rudolph, Case, and Horton. (Dkt. 49 at
4 at
70-71; Dkt. 56-
70-71). Jagusiak had been a part-time correction officer for approximately 3 years,
and did not have a college degree, but instead possessed only a GED.(Dkt.49 at ^ 70; Dkt.
56-4 at T| 70).
There is a factual dispute regarding whether Plaintiff and the other candidates were
consistently scored with respect to their interview answers. For example. Case testified
that Plaintiffs and Lindsey's answers to the question "how do you avoid conflict with coworkers" were "essentially the same." (Dkt. 52 at 143). However, Lindsey was scored
between "good" and "superior" on the quality of"professionalism"(Dkt. 54 at 78), while
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Plaintiff was rated only "fair" {id. at 64). On Plaintiffs evaluation form, Case recorded
that she "[f]reely gave medical information that at some pt. may have to be addressed."
(Dkt. 54 at 65).
Lindsey was selected for the full-time corrections officer position, but declined due
to "problems at home." (Dkt.49 at ^ 76; Dkt. 56-4 at ^ 76). The position was then offered
to Jagusiak. (Dkt. 49 at ^ 76; Dkt. 56-4 at ^ 76).
On July 19, 2013, Rudolph sent Morley an email in which he informed her that the
interviews for the open full-time corrections officer position were complete. (Dkt. 49 at
^ 77; Dkt. 56-4 at ^ 77). Next to Plaintiffs name, Rudolph indicated that she was "the one
you brought [labor attorney David Lippitt] in on because of a medical condition." (Dkt.
49 at ]| 77; Dkt. 56-4 at ^ 77). Rudolph further informed Morley that the position had been
offered first to Lindsey and then to Jagusiak, and that Rudolph had heard that Plaintiff was
upset she had not been hired and might pursue legal action. (Dkt. 49 at ^ 78; Dkt. 56-4 at
^ 78). Morley replied that "[t]he bottom line is that we have to address the accommodation
being made for [Plaintiff]. We do that by getting her physician involved to review her job
duties and determine if she's fit to do the entire job." (Dkt. 49 at Tf 79; Dkt. 56-4 at ]| 79).
Morley also asked Rudolph if he had it documented "in performance evaluations or
anywhere else" that "the other two officers outshine [Plaintiff]." (Dkt. 49 at ^ 79; Dkt. 564 at 179).
One day later, on July 20,2013, a minor incident in which Plaintiff allegedly turned
her back on Jagusiak was documented by Sergeant Gregory Smith. (Dkt. 49 at
Dkt. 56-4 at 80, 82).
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80, 82;
Rudolph officially became acting sheriff of Defendant on July 31, 2013. (Dkt. 49
atT|83;Dkt. 56-4 at t 83).
On September 25,2013,Plaintiffreceived a written notice for an absence alleged to
have occurred on September 20, 2013. (Dkt. 49 at ^ 84; Dkt. 56-4 at ^ 84). The parties
dispute whether Plaintiff bad agreed to take a shift on that date. (Dkt. 49 at ^ 84; Dkt. 564 at II 84).
Plaintiff was written up again one day later, on September 26, 2013, for having
missed a shift on September 24,2013. (Dkt.49 at ^ 85; Dkt. 56-4 at ^ 85). Again,Plaintiff
denies ever having agreed to work the allegedly missed shift. (Dkt. 49 at ^ 85; Dkt. 56-4
at ^ 85). Plaintiff came in to cover the rest of this shift upon being called, but was
nevertheless written up for being "absent" rather than "tardy." (Dkt. 49 at 85; Dkt. 56-4
at ^85).
On October 17,2013, Rudolph was notified that Plaintiff had filed a notice ofclaim
against Defendant. (Dkt. 49 at ^ 87; Dkt. 56-4 at ^ 87). The next day. Case sent an email
to Rudolph with the subject line "Abbott phone." (Dkt.49 at ^ 88; Dkt. 56-4 at ^ 88). The
content of the email reads, without further information or context, "13:12:00 on the 10th
of October." (Dkt. 49 at ^ 88; Dkt. 56-4 at 88). On October 21,2013, Sergeant Gregory
Smith drafted a non-contemporaneous memorandum to Case detailing an incident on
October 10, 2013, in which Plaintiff purportedly used her cell phone and was short with a
staff nurse. (Dkt. 49 at ^ 90; Dkt. 56-4 at T| 90). When this incident occurred. Defendant
did not have a formal policy prohibiting cell phone use. (Dkt.49 at T| 93; Dkt. 56-4 at ^ 93).
There was a memo regarding cell phone use that had been issued on May 21, 2010 (Dkt.
-8-
49 at ^ 94; Dkt. 56-4 at ^ 94), but the parties dispute whether Plaintiff had ever been made
aware of this memo. {See Dkt. 49 at
94-99); Dkt. 56-4 at Tf 94-99). Notwithstanding
the lack of a formal policy, Plaintiff was issued a warning in December 2013 for having
used her cell phone in October 2013. (Dkt. 49 at ^ 99; Dkt. 56-4 at ^ 99). Plaintiff claims
that numerous other corrections officers used their cell phones while on duty and were not
similarly disciplined; Defendant disputes this claim. (Dkt. 49 at ^ 100; Dkt. 56-4 at ^ 85).
In November 2013, Case and Rudolph became aware that Defendant would have an
open full-time corrections officer position. {See Dkt. 53-1 at 24). On November 13,2013,
a memo was printed and placed in Plaintiffs personnel file detailing an incident in May
2013 where a co-worker allegedly noticed that Plaintiffs face looked pale and her hands
were shaking. (Dkt. 49 at ^ 102; Dkt. 56-4 at ^ 102). At his deposition. Case could not
recall why this memo would have been printed in November when the incident occurred
in May. (Dkt. 49 at f 102; Dkt. 56-4 at ^ 102).
On November 14, 2013, Horton sent Case a memo detailing a complaint against
Plaintiff made by inmates; upon investigation, "the issue was closed due to credibility
issues with the alleged complainants." (Dkt. 49 at ^ 103; Dkt. 56-4 at ^ 103).
On November 15, 2013, Case sent an email to Rudolph wherein he reported that
Horton had called him at home the prior night to alert him that there were "possibly more
issues with CO Abbott." (Dkt. 49 at ^ 104; Dkt. 56-4 at 104). Case then asked Rudolph
when they should start the hiring process for a new full-time corrections officer. (Dkt. 49
at ^ 104; Dkt. 56-4 at ^ 104). At his deposition. Case was asked if it was normal for him
to alert Rudolph about possible issues, and he stated that he believed it was his "duty to let
[Rudolph] know if there's issues going on" because of"[Plaintiffs] lawsuit being filed."
(Dkt. 49 at ^ 105; Dkt. 56-4 at ^ 105).
Plaintiffs 50-h examination was conducted on December 17, 2013. (Dkt. 49 at
^ 106; Dkt. 56-4 at ^ 106). During the examination, Plaintiff testified about her history of
absent/petit mal seizures, including the incident in fall 2012 after her doctor adjusted her
medication. (Dkt.49 at ^ 106; Dkt. 56-4 at ^ 106). On December 20,2013, Case,Rudolph,
Morley, and Defendant's legal counsel had a conference call to discuss Plaintiffs
testimony. (Dkt.49 at ^ 107; Dkt. 56-4 at ^ 107). As a result ofthat conversation, Rudolph
decided to place Plaintiff on administrative leave pending an independent medical
examination. (Dkt. 49 at ^ 108; Dkt. 56-4 at ^ 108). In a memo to Plaintiff regarding her
administrative leave, Rudolph stated that her testimony at the 50-h examination had
brought to his attention information regarding her seizures and how they could potentially
jeopardize institutional safety; however. Plaintiff claims that Defendant was aware of the
nature of her seizures since 2010. (Dkt. 49 at
111-12; Dkt. 56-4 at
111-12).
On December 31,2013, Case sent an email to Morley, copied to Rudolph, to which
he attached an updated job description for a corrections officer. (Dkt. 53-1 at 41). Case's
email states that "[a]s with what is currently transpiring with the law suit, I think that it
only makes sense to update and change/add some verbiage" to the job description. (Id.).
Plaintiff was placed on administrative leave on January 10, 2014. (Dkt.49 at TI118;
Dkt. 56-4 at ^ 118). That same month, two full-time corrections officers were hired by
Defendant; Plaintiff was not chosen for either position, in part because of the contested
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warnings regarding absences and cell phone use described previously. (See Dkt. 56-4 at ^
119).
On March 24, 2014, Plaintiff underwent an independent medical examination by
Dr. Robert Knapp, who opined that she was capable of performing the essential functions
of a corrections officer, and cleared her to return to work without restrictions. (Dkt. 49 at
^ 120; Dkt. 56-4 at T| 120). Although Plaintiffs administrative leave was ultimately paid,
there was a delay in payment, and she did not receive any pay until March 28, 2014, more
than two months after the leave began. (Dkt. 49 at T| 121; Dkt. 56-4 at ^ 121). Plaintiff
returned to work on April 1, 2014. (Dkt. 49 at
122; Dkt. 56-4 at ^ 122).
A full-time corrections officer position became available in May 2014. (Dkt. 49 at
^ 123; Dkt. 56-4 at f 123). No interviews were conducted; instead. Defendant relied upon
the interviews and evaluations that had been conducted in connection with the positions
that were filled in January 2014. (Dkt.49 at ^ 123; Dkt. 56-4 at ^ 123). Plaintiff was again
not chosen for this position. (Dkt. 49 at
123; Dkt. 56-4 at ^ 123).
On May 7, 2014, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (the "EEOC"). (Dkt. 39-4 at ^ 3; Dkt. 49 at 30).
On May 21, 2014, Rudolph received a copy of a complaint Plaintiff had filed with the
EEOC. (Dkt. 49 at ^ 124; Dkt. 56-4 at ^ 124). The same day. Case sent Horton an email
stating "you can do another warning notice on Abbott." (Dkt. 49 at ^ 125; Dkt. 56-4 at
^ 125). On May 22, 2014, Morley replied to Rudolph's email advising her of Plaintiffs
EEOC complaint, stating "I just went through this agency with a former hospital employee
and it was a joke and waste oftime." (Dkt. 49 at ^ 126; Dkt. 56-4 at f 126). Also on May
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22,2017,Case sent an email to Rudolph regarding alleged further inmate complaints about
Abbott; Case investigated these complaints but ultimately did not take any further action.
(Dkt. 49 at 1127; Dkt. 56-4 at TI127).
On June 27, 2014, Case sent an email to all of Defendant's part time corrections
officers advising them of a new full-time position. (Dkt. 49 at f 128; Dkt. 56-4 at f 128).
Plaintiff again applied and was not selected. (Dkt. 49 at ^ 129; Dkt. 56-4 at ^ 129).
On November 26, 2014, another full-time opening was announced. (Dkt. 49 at
^ 130; Dkt. 56-4 at f 130). Letters of interest were due by December 5, 2014. (Dkt. 49 at
^ 130; Dkt. 56-4 at ^ 130). On December 8, 2014, Case emailed Rudolph to inform him
that only Plaintiff and Paige Hayden ("Hayden") had applied for the position. (Dkt. 49 at
^131; Dkt. 56-4 at ^ 131). Interviews for the position were postponed. (Dkt. 49 at ^ 134;
Dkt. 56-4 at ^ 134). On December 30, 2014, Case emailed Rudolph and asked "do you
want me to reschedule interviews ... or are we going to wait—^we just have Abbott and
Hayden for this opening." (Dkt. 49 at ^ 133; Dkt. 56-4 at T| 133). Interviews were
ultimately held on January 6,2015. (Dkt. 49 at 134; Dkt. 56-4 at ^ 134). Plaintiff again
contends that the rating of candidates was inconsistent, which Defendant disputes. (Dkt.
49 at lit 135-37; Dkt. 56-4 atllf 135-37).
A second full-time corrections officer position opened up in January 2015, and
ultimately Plaintiff and Hayden were both hired full-time. (See Dkt. 49 at 1139; Dkt. 564 at 1139).
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On May 5, 2015, Horton drafted a memo for Plaintiffs file regarding an incident
where Plaintiff left three inmates unattended at the officer's desk. (Dkt. 49 at 1143; Dkt.
56-4 at 1143).
PROCEDURAL BACKGROUND
Plaintiff commenced this action on June 17, 2015. (Dkt. 1). Plaintiff alleges the
following claims: discrimination on the basis of disability in violation of the Americans
with Disabilities Act of 1990, as amended,42 U.S.C. §§ 12101 etseq.(the "ADA");hostile
work environment based on disability in violation of the ADA; retaliation in violation of
the ADA;and discrimination based on disability, hostile work environment, and retaliation
in violation ofthe New York Human Rights Law,New York Executive Law §§ 290 et seq.
(the "NYHRL"). {Id.). Plaintiff seeks, among other relief, punitive damages. {Id. at 17).
Defendant answered on August 14, 2015. (Dkt. 4). Discovery was closed on May 15,
2018. (Dkt. 37). Defendant filed the instant motion for summary judgment on June 26,
2018. (Dkt. 39). Plaintiff filed her response on August 15, 2018 (Dkt. 46; Dkt. 47; Dkt.
48;Dkt.49; Dkt. 50; Dkt. 51; Dkt. 52; Dkt. 53), and Defendant filed its reply on September
14, 2018(Dkt. 56).
DISCUSSION
I.
Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "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 Court should grant summary judgment if, after considering the evidence in
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the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
"The moving party bears the burden ofshowing the absence of a genuine dispute as
to any material fact[.]" Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486(2d
Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party
moving for summary judgment may meet its burden by showing the evidentiary materials
of record, if reduced to admissible evidence, would be insufficient to carry the non-
movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y.2011)(citing Celotex Corp. v. Catrett, All U.S. 317,322-23(1986)). Once the
moving party has met its burden,the opposing party "must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44(2d Cir. 2015)(quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)). Specifically, the non-moving party "must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact." Brown,654
F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., All U.S. 242,247-48 (1986).
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II.
Discrimination in Violation of the ADA
The Court considers first whether Defendant is entitled to summary judgment on
Plaintiffs claim for employment discrimination in violation of Title I of the ADA. "Title
I of the ADA . . . contains a general prohibition of discrimination against qualified
individuals with disabilities in matters ofjob application, hiring, advancement, discharge,
compensation, training and any other terms and conditions of employment." Winokur v.
Office of Court Admin., 190 F. Supp. 2d 444, 448 (E.D.N.Y. 2002). "Claims alleging
disability discrimination in violation ofthe ADA are subject to the burden-shifting analysis
originally established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792(1973)." McMillan v. City ofN.Y., 711 F.3d 120, 125 (2d Cir. 2013)(quotation
omitted). Pursuant to this analysis, "[a] plaintiff must establish a prima facie case; the
employer must offer through the introduction of admissible evidence a legitimate nondiscriminatory 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).
Here, Defendant argues both that Plaintiff cannot establish a prima facie case of
disability discrimination, and that, in any event, it had legitimate, non-discriminatory, non-
pretextual reasons for its various decisions related to Plaintiffs employment. The Court is
unpersuaded by these arguments, for the reasons that follow.
A.
Prima Facie Case of Discrimination
As one court in this Circuit recently explained, to establish a prima facie case of
discrimination under the ADA:
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a plaintiff must show that:(1) her employer is subject to the ADA;(2) she
was disabled within the meaning ofthe ADA; she was otherwise qualified
(3)
to perform the essential functions of her job, with or without reasonable
accommodation; and(4)she suffered adverse employment action because of
her disability.
Stinnett v. Delta Air Lines, Inc., 278 F. Supp. 3d 599,612—13(E.D.N.Y. 2017)(quotation
and alterations omitted). "A plaintiff suffers an 'adverse employment action' under the
ADA when 'he or she endures a materially adverse change in the terms and conditions of
employment.'" Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426,434
(E.D.N.Y. 2015)(quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000)). "A materially adverse change is a change in working conditions that is 'more
disruptive than a mere inconvenience or an alteration ofjob responsibilities.'" Id.(quoting
Galabya, 202 F.3d at 640). Failure to promote constitutes an adverse employment action
under the ADA. See Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002)
("[Djiscriminatory failure to promote falls within the core activities encompassed by the
term 'adverse actions.'").
For purposes ofthe instant motion. Defendant has not disputed any ofthe first three
elements of an ADA discrimination claim. Instead, Defendant argues that Plaintiff has no
evidence that she was not promoted as a result of her disability, and accordingly cannot
establish a prima facie case of discrimination. The Court notes that after the filing of
Defendant's motion in this case, the Second Circuit held that the "but for" causation
standard, and not the "motivating factor" standard, applies to ADA claims. Natofsky v.
City of New York, 921 F.3d 337, 348 (2d Cir 2019). However, even under this more
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exacting standard, the Court concludes that disputed issues of fact necessitate denying
Defendant's summary judgment motion.
On a motion for summaryjudgment,"[t]he plaintiffs burden ofestablishing aprima
facie case of employment discrimination is de minimis.'" Chasse v. Computer Sets. Corp.,
453 F. Supp. 2d 503, 514(D. Conn. 2006). Here, the Court easily concludes that there is
evidence giving rise to a reasonable inference ofdiscrimination with respect to Defendant's
repeated failure to promote Plaintiff, and that she has accordingly met the minimal burden
of establishing a prima facie case of disability-based discrimination. In particular,
assessing the evidence in the light most favorable to Plaintiff, a reasonable factfinder could
conclude that Rudolph allowed James to be promoted under the long-standing seniority
policy but then, within a matter of weeks, when Plaintiff would have been next-in-line for
promotion, completely changed the procedure. Moreover, there is ample evidence in this
case that the key decisionmakers (namely, Rudolph, Case, and Morley) looked
disfavorably on Plaintiffs disability, including particularly the ongoing references to
Plaintiffs epilepsy as an "issue" and the continuing questioning of Plaintiffs fitness for
duty, despite the fact that she had been medically cleared at the outset of her employment.
See id.(explaining that relevant factors in assessing whether an inference ofdiscrimination
can be drawn include "the timing of the adverse employment action," as well as "the
sequence of events leading to the adverse employment action" and whether "the employer
criticized the plaintiffs work performance in terms degrading to her protected class").
17-
B.
Pretext
Defendant further argues that it had legitimate, non-discriminatory reasons for
failing to promote Plaintiff, and that there is no evidence these reasons were pretextual.
Accepting for purposes ofthis motion that Defendant's identified reasons for its promotion
decisions were legitimate and non-discriminatory, the Court nevertheless concludes that
there are issues of fact as to whether those reasons were pretextual.
The burden of showing pretext is higher than that for setting forth a prima facie
discrimination case, and "the key is whether there is sufficient evidence in the record from
which a reasonable trier of fact could find in favor of the plaintiff on the ultimate issue,
that is, whether the record contains sufficient evidence to support an inference of
discrimination." Clark v. Jewish Childcare Ass'n, Inc.,96 F. Supp. 3d 237,255(S.D.N.Y.
2015) (quotation and alteration omitted). In other words, the plaintiff must "produce
adequate evidence to support a rational finding that the employer's explanation is false and
that, more likely than not, discrimination was the real reason for the adverse action." Fall
V. New York State United Teachers, 289 F. App'x 419,421 (2d Cir. 2008).
In this case. Plaintiff has identified genuine factual issues as to whether the
interview process developed by Case was applied consistently to the applicants for fulltime positions. A rational factfinder could conclude, on the record before the Court, that
Plaintiff was arbitrarily scored lower for similar answers. While there is nothing inherently
unlawful about using subjective criteria in hiring decisions, the Second Circuit has
acknowledged that "[a] subjective evaluation, besides being clear and specific, must also
be honest." Byrnie v. Town of Cromwell, Ed. ofEduc., 243 F.3d 93, 105 (2d Cir. 2001).
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The scoring inconsistencies in this case create a question for a jury as to whether the
evaluations used by Defendant meet this threshold. Moreover, the deviation from the
seniority policy and the express inclusion of a question regarding the need for
accommodations are further evidence that the interview process was designed to exclude
Plaintiff, as is the delay in interviews that resulted when Plaintiff was one of only two
candidates for a full-time opening. The Court further notes that Plaintiffs qualifications
(namely, her experience and education) were superior, on paper, to those chosen for the
full-time positions, and "[cjourts have recognized that an employer's disregard or
misjudgment of a plaintiffs job qualifications may undermine the credibility of an
employer's stated justification for an employment decision." Id. at 103(further explaining
that even where a credential gap is not so substantial as to create a genuine issue of material
fact standing alone,"that does not mean the discrepancy is stripped of all probative value,"
and it can still be considered in bearing on the employer's credibility). Viewing the
evidence in this case in its totality, the Court cannot say, as a matter of law, that no
reasonable juror could conclude that Defendant did not want to hire Plaintiff full-time
because of her seizures, and that it accordingly failed to promote her until left without any
other viable alternative.
For all these reasons, the Court finds that Defendant is not entitled to summary
judgment on Plaintiffs ADA discrimination claim.
III.
Hostile Work Environment Claim
Plaintiff also asserts a claim for a hostile work environment based on her disability.
As an initial matter, the Second Circuit has "not yet decided whether hostile-work- 19-
environment claims are cognizable under the ADA." Dollinger v. New York State Ins.
Fund, 726 F. App'x 828, 831 (2d Cir. 2018). However, assuming that such a claim is
viable, it is evaluated under the same standard as a claim for a hostile work environment
under Title VII of the Civil Rights Act of 1964 ("Title VII")—^that is, the plaintiff must
show conduct that:
(1) is objectively severe or pervasive—^that is, ... creates an environment
that a reasonable person would find hostile or abusive; (2) creates an
environment that the plaintiff subjectively perceives as hostile or abusive;
and (3)creates such an environment because ofthe plaintiffs disability.
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)(quotation and alteration omitted).
"Whether a workplace is a hostile work environment under the provisions of the ADA
requires consideration ofthe totality ofthe circumstances." Giambattista v. Am. Airlines,
Inc., 5 F. Supp. 3d 284, 294(E.D.N.Y. 2014), aff'd, 584 F. App'x 23(2d Cir. 2014).
In this case. Defendant seeks summary judgment on Plaintiffs hostile work
environment claim based on the so-called FaragherlEllerth affirmative defense. See
Faragher v. City ofBoca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998). This affirmative defense, which has been applied to hostile work
environment claims under the ADA, "has two elements: (1) the employer exercised
reasonable care to prevent and correct promptly any discriminatory harassing behavior, and
(2) the plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise." Wildman
V. Verizon Corp., No. l:05-CV-899 FJS/DRH,2009 WL 104196, at *4(N.D.N.Y. Jan. 14,
2009)(quotation and alteration omitted). The first of these elements can be satisfied by
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"showing the existence of an antiharassment policy during the period of the plaintiffs
employment," while the second can be satisfied by "proof that an employee has
unreasonably failed to use the employer's complaint procedure." Id.(quotation omitted).
"[T]he Faragher/Ellerth affirmative defense applies to supervisor harassment,"
MacCluskey v. Univ. ofConnecticut Health Ctr., 707 F. App'x 44, 47(2d Cir. 2017), but
cannot be invoked if "the supervisor's harassment culminates in a tangible employment
action," Ferraro v. Kellwood Co.,440 F.3d 96, 101-102(2d Cir. 2006)(quotingFaragher,
524 U.S. at 808).
In this case. Defendant has submitted evidence that it maintained an antiharassment
policy at all times relevant to the instant matter and that Plaintiff was aware ofthis policy.
(See Dkt. 39-2 at 16-26). Moreover, Plaintiff has not disputed that she failed to utilize the
complaint procedure set forth therein. (See Dkt. 39-4 at ^ 33; Dkt. 49 at 35). Indeed,
Plaintiffs response to Defendant's motion for summary judgment fails to even discuss the
Faragher!Ellerth defense. (See Dkt. 46 at 27-28). However,Defendant's submission fails
to address the exception to the Faragher/Ellerth defense that arises where a supervisor's
harassment culminates in a tangible employment action.
The Court has serious doubts that the record in this case supports a finding that the
alleged conduct rose to the level of severe or pervasive harassment based on disability. It
is not even clear to the Court what conduct Plaintiff is claiming rose to such a level.
However, Defendant has not sought summary judgment on this basis, nor have the parties
briefed it.
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With respect to the Faragher/Ellerth affirmative defense,the Court cannot conclude
at this point in time that it applies as a matter of a law. In particular, because it is not clear
to the Court what conduct could arguably constitute severe or pervasive harassment, the
Court is unable to assess whether that harassment in turn culminated in a tangible
employment action, and Defendant has not addressed this issue at all in its briefing.
Moreover,Plaintiffs failure to address the Faragher/Ellerth issue in her response does not
relieve the Court of its burden of assuring that summary judgment is truly warranted. See
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,242(2d Cir. 2004)("Even
when a motion for summary judgment is unopposed, the district court is not relieved of its
duty to decide whether the movant is entitled to judgment as a matter of law."). On the
current record. Defendant has not demonstrated its entitlement to summary judgment on
Plaintiffs hostile work environment claim.
However, in light ofthe Court's serious misgivings about the viability ofPlaintiffs
hostile work environment claim,the Court will deny Defendant's motion without prejudice
solely on this issue. If Defendant wishes, it may make a renewed motion for summary
judgment onlv as to Plaintiffs hostile work environment claim by no later than October
25,2019.
IV.
Retaliation in Violation of the ADA
Defendant further seeks summary judgment on Plaintiffs claim for retaliation in
violation of the ADA. As the Second Circuit has explained:
The ADA makes it unlawful for an employer to "discriminate against any
individual because such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a charge, testified,
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assisted, or participated in any manner in an investigation, proceeding, or
hearing under this chapter."
Treglia, 313 F.3d at 719(quoting 42 U.S.C. § 12203(a)). Claims for retaliation under the
ADA "are analyzed under the same burden-shifting framework established for Title VII
cases." Id. To prevail on a claim for retaliation under the ADA:
First, the plaintiff must establish aprimafacie case ofretaliation by showing:
(1) participation in a protected activity; (2) that the defendant knew of the
protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment
action. The plaintiffs burden in this regard is de minimis, and the court's
role in evaluating a summary judgment request is to determine only whether
proffered admissible evidence would be sufficient to permit a rational finder
offact to infer a retaliatory motive.
Hernandez v. Int'l Shoppes, LLC, 100 F. Supp. 3d 232, 267 (E.D.N.Y. 2015)(quotation
omitted). "Once a plaintiff establishes a prima facie case of retaliation, the burden shifts
to the defendant to articulate a legitimate, non-retaliatory reason for the challenged
employment decision." Treglia, 313 F.3d at 721. Then, "[i]f a defendant meets this
burden, the plaintiff must point to evidence that would be sufficient to permit a rational
factfmder to conclude that the employer's explanation is merely a pretext for impermissible
retaliation." Id.
A.
Protected Activity
As an initial matter. Defendant contends that the first "protected activity" in which
Plaintiff engaged is the filing of her notice of claim, and that any actions taken before that
date cannot have constituted retaliation. Plaintiff argues in opposition that Rudolph's email
to Morley on July 19,2013, wherein he stated that Plaintiff was upset that she was not hired
and might pursue legal assistance, is evidence of earlier protected activity. However,
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Plaintiff has not provided any additional information regarding the content of any
complaints she may have made in July 2013.
The Court agrees with Defendant that, on the current record, the earliest protected
activity Plaintiff can establish she engaged in is the filing of her notice of claim. While it
is true that "protected activity includes informal protests of discriminatory employment
practices, including making complaints to management," any such informal complaints
"must be sufficiently specific to make it clear that the employee is complaining about
conduct prohibited by [the ADA]." Risco v. McHugh,868 F. Supp. 2d 75, 110(S.D.N.Y.
2012)(quotation omitted). Here, while it may be the case that Plaintiff complained about
being passed over for promotion in July 2013, there is nothing in the record from which a
reasonable factfmder could conclude that her complaint related to alleged discrimination
on the basis of her disability, or that Rudolph understood her to be making such a
complaint. To the contrary. Plaintiff herself characterizes the facts as Rudolph having
merely "heard rumors that[Plaintiff] may pursue legal assistance." (Dkt.46 at 29). Vague,
secondhand rumors do not satisfy the specificity requirement to constitute protected
activity. "The burden is on plaintiff to show that she was engaged in a protected activity,
in order to avoid summary judgment." Correa v. Mana Prod., Inc., 550 F. Supp. 2d 319,
331 (E.D.N.Y. 2008). In this case. Plaintiff cannot satisfy that burden prior to the filing of
her notice of claim.
B.
Adverse Employment Actions
Defendant next argues that the only "adverse employment action" that Plaintiff has
suffered since the filing of her notice of claim is a failure to promote. Defendant
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specifically argues that Plaintiffs placement on administrative leave and her receipt of
various warnings do not constitute adverse employment actions as a matter of law. The
Court disagrees.
First, with respect to Plaintiffs placement on administrative leave, contrary to
Defendant's contention, the Second Circuit has not held that paid administrative leave
cannot constitute an adverse employment action for purposes of an ADA retaliation claim.
In fact, m' Joseph v. Leavitt,465 F.3d 87(2d Cir. 2006),the case on which Defendant relies
for its argument,the court declined to reach such a conclusion. See id. at 92 n.1 (explaining
that the decision expressly does not conclude that "paid administrative leave can never be
adverse"). Indeed, the Joseph court noted that "[a]n exceptionally dilatory investigation
might constitute a material change in the terms and conditions of employment." Id. at 92.
Similarly, the court in Baum v. Rockland Cty., 161 F. App'x 62(2d Cir. 2005)specifically
did not reach the issue of"whether there might be... circumstances...in which"requiring
a plaintiff to submit to a medical examination "could constitute an adverse employment
action for purposes of... ADA retaliation." Id. at 64 n.2.
Here,the circumstances surrounding Plaintiffs paid administrative leave could lead
a reasonable factfinder to conclude that it was a material change in the terms of her
employment. In this regard, the Court finds it particularly significant that Plaintiff was not
paid until the end ofthe administrative leave, meaning that she was without a paycheck for
almost three months. Moreover, there is a factual dispute as to whether Defendant
genuinely believed that administrative leave was necessary. On these facts, the Court is
25-
not prepared to conclude as a matter of law that Plaintiffs placement on administrative
leave did not constitute an adverse employment action.
Turning to Plaintiffs receipt of written warnings, "[r]eprimands or negative
evaluation letters may,in some circumstances, constitute adverse employment action," and
"whether they do is typically a question of fact for the jury." Lawrence v. Mehlman, 389
F. App'x 54,56(2d Cir. 2010)(collecting cases). In particular, where warnings or negative
performance evaluations "trigger some adverse consequences to plaintiffs employment,
courts in this district have left it to the trier offact to determine whether those consequences
rise to the level of adverse employment action." Trachtenberg v. Dep't ofEduc. ofCity of
N.Y., 937 F. Supp. 2d 460, 469 (S.D.N.Y. 2013). In this case. Defendant acknowledges
that one ofthe cited reasons for Plaintiff not being promoted in January 2014 was because
ofthe challenged written warnings. (See Dkt. 56-4 at Tf 119). The Court finds that, under
these circumstances, there is a question of fact as to whether these written warnings rose
to the level of an adverse employment action.
C.
Causal Connection
Defendant argues that Plaintiff cannot demonstrate that any adverse employment
action was taken for retaliatory reasons. The Court disagrees and finds that Plaintiff has
shown that genuine issues of material fact exist as to whether she was placed on
administrative leave in retaliation for her complaints of discrimination. The Court finds
the following particularly relevant in reaching this conclusion: there are factual disputes as
to whether Rudolph's stated reason for placing Plaintiff on administrative leave was
fabricated; the decision to place Plaintiff on administrative leave was made in extremely
-26-
close proximity to her testifying at her 50-h examination; there was a multiple week gap in
between the decision being made and the administrative leave actually being commenced
during which time Plaintiff continued to work, calling into question the assertion that the
leave was necessary for institutional safety; and Defendant has offered no explanation for
why, in November 2013, a memo was placed in Plaintiffs personnel file detailing an
incident in May 2013 where a co-worker allegedly noticed that Plaintiffs face looked pale
and her hands were shaking, which suggests that Defendant was trying to create the
impression that Plaintiff was unfit for duty or having medical issues at work. The Court
cannot say that a reasonable juror would be constrained to find for Defendant on Plaintiffs
claim that she was placed on administrative leave for retaliatory reasons.
The Court further finds that genuine issues of material fact exist as to whether
retaliation was the cause ofthe written warnings and associated failure to promote Plaintiff
postdating her protected activity. While it is true that "[wjhere timing is the only basis for
a claim of retaliation, and gradual adverse job actions began well before the plaintiff had
ever engaged in any protected activity, an inference of retaliation does not arise," Slattery
V. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001), in this case there is
evidence beyond temporal proximity to support Plaintiffs retaliation claims. For example,
after being served with Plaintiffs notice of claim, it appears that Case began actively
seeking out matters for which Plaintiff could be reprimanded, inasmuch as his email to
Rudolph supports the inference that he was reviewing security footage looking for video
ofPlaintiff using her cell phone. There is also a factual dispute as to whether Plaintiff was
treated differently with respect to cell phone use than other corrections officers. Case
-27-
himselfacknowledged at his deposition that he was reporting potential issues with Plaintiff
to Rudolph because of her lawsuit. A reasonable juror could conclude from this evidence
that Plaintiffs complaints of discrimination caused Defendant to increase efforts to find
reasons to reprimand Plaintiff, so as to ensure that she would not be promoted. Summary
judgment on Plaintiffs claim of retaliation under the ADA is not warranted.
V.
NYHRL Claims
Defendant also seeks summary judgment on Plaintiffs claims of disability
discrimination and retaliation under the NYHRL. Generally speaking, "[t]he same
standard applies to disability discrimination claims against an entity under both the ADA
and the NYHRL." Murphy v. N.Y. State Pub. Employees Fed'n, No. 17-CV-628T JMT
WD, 2019 WL 4257261, at *10 (N.D.N.Y. Sept. 9, 2019). Similarly, courts generally
"analyze hostile work environment claims under the ADA and the NYHRL using the same
standard that they apply to Title VII hostile work environment claims." Guinup v. Petr-All
Petroleum Corp., 786 F. Supp. 2d 501, 515 (N.D.N.Y. 2011).^ Furthermore, retaliation
claims under the NYHRL are generally "governed in this respect by the same standards as
the ADA." Treglia, 313 F.3d at 719. Accordingly, for all the reasons already discussed,
the Court denies Defendant's request for summary judgment on Plaintiffs discrimination.
^
Changes to the hostile work environment provisions of the NYHRL were signed
into law on August 12,2019, and are set to go into effect in early October. However,these
changes are not retroactive and so do not impact the Court's analysis of Plaintiffs hostile
work environment claim. See https://www.nysenate.gov/legislation/bills/2019/s6577
(summarizing amendments).
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retaliation, and hostile work environment claims under the NYHRL, without prejudice to
the filing of a renewed motion addressed solely to the hostile work environment claim.
VI.
Request for Punitive Damages
Finally, Defendant asks the Court to determine as a matter of law that Plaintiff
cannot recover punitive damages from Defendant under either the ADA or the NYHRL.
Plaintiff has not responded to this argument.
"Punitive damages are not available under . . . Title I of the ADA against a
government, govemment agency or political subdivision." Morales v. N.Y.C. Transit
Auth., No.05-CV-04097 ENV RER,2008 WL 11433211, at *9(E.D.N.Y. Mar. 10, 2008).
Nor are punitive damages available against a municipality under the NYHRL. See Hollis
V. City ofBuffalo, 28 F. Supp. 2d 812, 826(W.D.N.Y. 1998);
also Katt v. City ofN.Y.,
151 F. Supp. 2d 313, 332(S.D.N.Y. 2001)(explaining that under New York law,"in the
absence of an explicit statutory provision to the contrary, even a municipal subsidiary
corporation—like the municipality itself—is exempt from the assessment of punitive
damages"), aff'd sub nom. Krohn v. N.Y.C. Police Dep't, 372 F.3d 83 (2d Cir. 2004).
Accordingly, the Court grants Defendant's summary judgment motion as to any claim by
Plaintiff for punitive damages.
CONCLUSION
For the foregoing reasons. Defendant's motion for summary judgment(Dkt. 39)is
granted in part and denied in part. In particular, the Court denies Defendant's motion as to
Plaintiffs claims of discrimination and retaliation under the ADA and the NYHRL. The
Court further denies Defendant's motion with respect to Plaintiffs claim for a hostile work
-29-
environment under the ADA and the NYHRL, but without prejudice to the filing of a
renewed motion for summary judgment addressing solely these claims by no later than
October 25, 2019. The Court grants Defendant's motion with respect to any claim by
Plaintiff for punitive damages.
SO ORDERED.
ELIZ^ETH
United States District Judge
Dated: September 26, 2019
Rochester, New York
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