Opinion
INDEX NO. 152614/2017
03-16-2020
KATHLEEN MAY GORDON, Plaintiff, v. CONSOLIDATED EDISON, INC., Defendant.
NYSCEF DOC. NO. 67 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 003
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 003) 39, 40, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER).
In this action sounding in employment discrimination, defendant Consolidated Edison, Inc. ("CEI") moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint (Doc. 39). Plaintiff Kathleen Gordon ("Gordon") opposes the motion and cross-moves, pursuant to CPLR 3025 (b), for leave to file an amended summons and complaint to add Consolidated Edison Company of New York, Inc. ("CECNY") as a defendant in this action (Doc. 50). After oral argument, as well as a review of the parties' motion papers and relevant statutes and case law, the motions are decided as follows.
FACTUAL AND PROCEDURAL HISTORY:
The underlying facts of this matter are set forth in detail in the order of this Court entered June 4, 2018 ("the 6/4/18 order") which held, inter alia, that CEI was not entitled to dismissal of the complaint since it was unclear whether it had knowledge that Gordon had received the marijuana registry card prior to her termination on January 11, 2017 and, thus, whether CEI had discriminated against Gordon based on her disability and had failed to accommodate her (Doc. 30). The 6/4/18 order also denied Gordon's motion for leave to amend the summons and complaint to add CECNY as a defendant because she failed to provide a supplemental summons naming CECNY; however, it allowed her to renew her motion upon proper papers (Doc. 30).
The facts of this case are briefly summarized as follows. Gordon, an employee of CECNY, CEI's subsidiary, was subjected to random drug testing on December 21, 2016 and tested positive for marijuana (Doc. 42 at Exhibit E-F). She was terminated on January 11, 2017 (Doc. 42 at Exhibit J). However, after her drug test and before her termination, Gordon became a certified marijuana patient to treat her Inflammatory Bowel Disease ("IBD") (Doc. 59). In March 2017, Gordon commenced this action against CEI, CECNY's corporate parent company, claiming discrimination based on her disability (Doc. 1).
Although CEI addresses Gordon's disability as two fold, (1) her IBD and (2) her status as a medical marijuana patient under the Compassionate Care Act ("CCA") (see Public Health Law §§ 3360-3369-e), which is a separate and distinct disability for purposes of a discrimination claim (see Public Health Law § 3369 [2]), it appears that Gordon's arguments in opposition to the summary judgment motion are based on the latter and, thus, the Court will treat the causes of action as a disability based on her status as a medical marijuana patient.
In the complaint, Gordon alleged three causes of action: (1) that CEI discriminated against her based on her disability and failed to reasonably accommodate her in violation of New York State Public Health Law § 3369 and Executive Law § 296 (the New York State Human Rights Law ["NYSHLR"]); (2) that it discriminated against her based on her disability in violation of the New York City Administrative Code § 8-502(a) (the New York City Human Rights Law ["NYCHRL"]); and that (3) it violated Public Health Law § 3369 (Doc. 53). CEI filed an answer on September 6, 2018, raising several affirmative defenses (Doc. 32). A note of issue was filed on June 18, 2019 and, in August 2019, CEI moved for summary judgment dismissing the complaint (Docs. 37, 39). In October 2019, Gordon cross-moved to amend the complaint to add CECNY as a defendant (Doc. 50).
The amended complaint sets forth identical claims except that it also includes CECNY (Doc. 53).
CEI argues, inter alia, that it is entitled to summary judgment dismissing the complaint because Gordon cannot prove that she is a member of "a protected class" since her employment was terminated due to her violation of its drug policy, which occurred before her certification (Doc. 40). Additionally, it contends that she cannot show an "adverse employment action under circumstances giving rise to an inference of discrimination" because there is no direct evidence of discrimination or disparate treatment (Doc. 40 at 22). It maintains that Gordon's deposition testimony, as well as text messages and emails from Gordon to her direct supervisor, Jan Childress ("Childress"), disprove this claim. Gordon testified that she had a good working relationship with her supervisors, that Childress was supportive when he first believed that she was a medical marijuana patient following her failed drug test, and CEI claims that this is further reflected by emails and text messages to Childress (Doc. 42 at Exhibits G-H). CEI further argues that "[t]hese are not the actions of a [c]ompany or supervisor that harbored discriminatory animus against a medical marijuana patient" (Doc. 40 at 22).
CEI also submits, inter alia, the affidavit of Stephanie Barnhart ("Barnhart"), the administrative physician in CECNY's Wellness Center, who affirms, inter alia, that she conducted an interview with Gordon on January 5, 2017, at which time Gordon informed her that she had smoked marijuana on or about December 21, 2016 and had presented her with a medical marijuana certification form reflecting a patient certification issue date of December 27, 2016 (Doc. 43, 44 at Exhibit B). At that time, Barnhart determined that Gordon violated the company's drug policy; deemed Gordon unfit for duty; and advised Gordon's department that she would not be eligible for treatment due to her short tenure with CECNY (Doc. 44 at Exhibit C).
Further, Vincent Frankel ("Frankel"), the director of employee and labor relations, submits an affidavit in support of CEI's summary judgment motion (Doc. 45). Frankel affirms, inter alia, that the company's drug policy prohibits employees from using illegal drugs and from working under the influence of drugs, and that "[its] practice, [although not memorialized in a formal policy document], is to terminate employees with less than six months on the job for their first violation of the [c]ompany's [d]rug [p]olicy" (Doc. 45). Moreover, avers Frankel, during 2015-2018, 14 employees with less than six months of employment were terminated under similar circumstances (Doc. 46 at Exhibit B).
Frankel submits a document reflecting the termination of the 14 employees. He explains that the action code "release" means termination and that only one of the employees resigned before his termination (Doc. 46 at Exhibit B).
Even if this Court were to find that Gordon has met her prima facie burden of establishing a discrimination claim, CEI argues that dismissal of the complaint is nevertheless warranted because her termination was based on a legitimate, non-discriminatory reason and she fails to show any pretext for the employment action (Doc. 40 at 23-25). CEI argues that Gordon corroborated this fact during her deposition insofar as she acknowledged that Barnhart had advised her during her interview that her short tenure with CECNY could impact how her failed drug test would be viewed (Doc. 42 at Exhibit P, page 166). Further, since 2016, 46 of its employees obtained certification to use medical marijuana, and no adverse action was ever taken against them based on their status (Doc. 45).
CEI also argues, inter alia, that Gordon's claim under the NYCHRL must be dismissed on the ground that medical marijuana patients are not a protected class under that statute (Doc. 40 at 26). It contends that, unlike the NYSHRL, which amended the definition of "disability" to include medical marijuana patients (see Public Health Law § 3369), no such change was made to the NYCHRL (Doc. 40 at 26).
In opposition to the motion, Gordon argues, inter alia, that issues of fact preclude summary judgment (Doc. 62). She maintains that CECNY was aware of her IBD condition before her termination, it understood that she was using marijuana at her doctor's direction, and it was fully cognizant that Gordon possessed the certified medical marijuana card at the time of her termination (Doc. 62 at 13). Moreover, since she had become a certified marijuana patient prior to her discharge, Gordon argues that CECNY had an affirmative obligation to reasonably accommodate her but failed to do so (Doc. 62 at 15). Further, Gordon claims that, since the drug policy affords drug treatment programs for employees who test positively, she should not be treated worse than an employee who used drugs recreationally (Doc. 62).
Gordon submits an affidavit in which she affirms, inter alia, that, before December 17, 2016, she had consulted with Dr. Yadiera Brown about the use of marijuana to treat her IBD and had contacted Dr. Kenneth Weinberg on December 18, 2016 to obtain certification as a medical marijuana patient; that a registry identification card for enrollment in New York State's medical marijuana program had been issued to her on January 9, 2017; that CECNY was informed of her status prior to her termination; and that at no time did CECNY communicate with her concerning her illness or accommodations that she might require (Docs. 58-61).
LEGAL CONCLUSIONS:
Employment discrimination claims brought pursuant to the NYSHRL and NYCHRL, including disability claims, are analyzed pursuant to the three-part burden-shifting framework established in McDonnell Douglas Corp. v Green, 411 US 792 (1973) (see Stephenson v Hotel Emples. & Rest. Emples. Union Local 100 of AFL-CIO, 6 NY3d 265, 270-271 [2006]; Reichman v City of New York, 179 AD3d 1115, 1117 [2d Dept 2020]). First, the plaintiff must meet his or her prima facie burden to establish a discrimination claim and, "[i]f the plaintiff makes such a showing, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the employment decision. If the employer succeeds in doing so, the burden then shifts back to the plaintiff to prove that the reason proffered by the employer was merely a pretext for discrimination" (Hudson v Merril Lynch & Co., Inc., 138 AD3d 511, 514-515 [1st Dept 2016] [internal quotation marks and citations omitted]; see Stephenson v Hotel Emples. & Rest. Emples. Union Local 100 of AFL-CIO, 6 NY3d at 270-271; Johnson v IAC/Interactive Corp., 2018 NY Slip Op 31720[U], 2018 Misc LEXIS 3184, *2-3 [Sup Ct, NY County 2018]).
To make out a prima facie case of employment discrimination under either statute, a plaintiff "must show that he [or she] is a member of a protected class qualified to hold his or [her] position who was fired or suffered an adverse employment action which occurred under circumstances giving rise to an inference of discrimination" (Haber v J. Press, Inc., 2013 NY Slip Op 31201[U], 2013 NY Misc LEXIS 2376, *6-7 [Sup Ct, NY County 2013] [internal quotation marks and citation omitted]; see Melman v Montefiore Medical Center, 98 AD3d 107, 113-114 [1st Dept 2012]; Mete v New York State office of Mental Retardation & Developmental Disabilities, 21 AD3d 288, 290 [1st Dept 2005]; Engelman v Girl Scouts-Indian Hills Council, Inc., 16 AD3d 961, 962 [3rd Dept 2005]).
Moreover, "[t]o prevail on a motion for summary judgment seeking dismissal of an employment discrimination claim under the NYSHRL, 'defendants must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual'" (Fusco v HSBC Bank United States N.A., 2018 NYLJ LEXIS 2673, *14-15 [Sup Ct, NY County 2018], quoting Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]).
"A motion for summary judgment dismissing a [NYCHRL] claim can be granted only if the defendant demonstrates that it is entitled to summary judgment under both the McDonnell Douglas burden-shifting framework and the 'mixed-motive' framework" (Hudson v Merril Lynch & Co., Inc., 138 AD3d at 514 [internal brackets and citation omitted]; see Watson v Emblem Health Services, 158 AD3d 179, 183 [1st Dept 2018]; Bennet v Health Management Systems, Inc., 92 AD3d 29, 41 [1st Dept 2011]). "Under the 'mixed-motive' framework, the question on summary judgment is whether there exist triable issues of fact that discrimination was one of the motivating factors for the defendant's conduct. Thus, under this analysis, the employer's production of evidence of a legitimate reason for the challenged action shifts to the plaintiff the lesser burden of raising an issue as to whether the [adverse employment] action was motivated at least in part by . . . discrimination" (Hudson v Merril Lynch & Co., Inc., 138 AD3d at 514 [internal quotation marks and citations omitted]).
CEI concedes that Gordon meets the second and third elements, but it argues that she was not a member of a protected class and that her termination did not arise under circumstances giving rise to an inference of discrimination.
Gordon has established a prima facie case of discrimination based on her status as a certified medical marijuana patient. CEI's argument that Gordon was not a member of a protected class is unavailing because, although she was not a certified medical marijuana patient when she failed her drug test, it is undisputed that she had become certified before her termination and that she made CECNY aware of this fact (Doc. 42). Since Gordon was "disabled" within the purview of the CCA at the time that she was fired, she was a member of a "protected class" (see Public Health Law § 3369). Additionally, since the protections under the NYCHRL are more expansive than those under the NYSHRL (see Curtin v J-V Successors, Inc., 2017 NY Slip Op 30651[U], 2017 NY Misc LEXIS 1224, *10 [Sup Ct, NY County 2017]; Spellman v Gucci Am. Inc., 2015 NY Slip Op 31728[U], 2015 NY Misc LEXIS 3326, *7-8 [Sup Ct, NY County 2015]), this Court rejects CEI's argument that Gordon's medical marijuana status, which is based on her physical impairment, is not a disability under the NYCHRL. CEI's contention that its adverse action against Gordon cannot give rise to an inference of discrimination is without merit for the same reasons.
"Section 8-107 (1) (a) of the NYCHRL makes it an unlawful discriminatory practice for an employer to discriminate in terms and conditions of employment or discharge an employee because of disability. A disability is defined by section 8-102 (16) (a) of the NYCHRL as any physical, medical, mental or psychological impairment. Section 8-107 (15) (a) of the NYCHRL provides that an employer has the obligation to make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job ... provided that the disability is known or should have been known by the [employer]" (Watson v Emblem Health Services, 158 AD3d at 182 [internal quotation marks and citations omitted]).
Although CEI has proffered a legitimate, non-discriminatory reason for the adverse action against Gordon by submitting proof that she violated its drug policy within the first six months of her tenure, and that it was CECNY's policy to terminate employees under these circumstances (see McClarence v International Union of Operating Engineers Local Union, 2017 WL 3887883, *2 [EDNY 2017]; Fahey v City of New York, 2012 WL 413990, *9 [EDNY 2012]; Knighton v City of Syracuse Fire Dept., 145 F Supp 2d 217, 224 [NDNY 2001]), this Court nevertheless finds that, viewing the evidence in the light most favorable to the plaintiff, Gordon has raised an issue of fact as to whether this reason is pretextual (see Watson v Emblem Health Services, 158 AD3d at 184; Coronado v Weill Cornell Med. Coll., 66 Misc 3d 404, 407-408 [Sup Ct, NY County 2019]). As Gordon asserts in her opposition papers, employees who violate the drug policy may be afforded an opportunity to attend rehabilitation and, although CEI argues that this practice does not apply to new employees within their first six months of employment, there is no such language in the drug policy to this effect (Doc. 46 at Exhibit A). "Since plaintiff's discrimination claims survive summary judgment under the NYSHRL, they survive dismissal under the more lenient NYCHRL for the same reasons" (Coronado v Weill Cornell Med. Coll., 66 Misc 3d 404, 407-408 [Sup Ct, NY County 2019]).
Reasonable Accommodation
Failure to provide reasonable accommodation for an employee's known disability violates both the NYSHRL and the NYSHRL (see Executive Law § 296 [3] [a]; NYC Admin. Code § 8-107 [15] [a]). In a case alleging failure to accommodate under the Americans with Disabilities Act ("ADA") and NYSHRL, "an employee must show that: (1) [he] [or she] is a person with a disability under the meaning of the ADA [or NYCHRL]; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, [the employee] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations" (Noll v International Business Machines Corp., 787 F3d 89, 94 [2d Cir 2015] [internal quotation marks and citations omitted]; see McBride v BIC Consumer Prods. Mfg. Co., Inc., 583 F3d 92, 97 [2d Cir 2009]). The NYSHRL defines reasonable accommodation "as actions taken by employer which 'permit an employee . . . with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held . . . provided, however that such actions do not impose an undue hardship on the business'" (Pimentel v Citibank, N.A., 29 AD3d 141, 145 [1st Dept 2006], quoting Executive Law § 292 [21-e]).
Similar to the NYSHRL, under the NYCHRL, an employer must "make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job . . . provided that the disability is known or should have been known by the [employer]" (Lazzari v New York City Department of Parks and Recreation, 751 Fed Appx 100, 102 [2d Cir 2018] [internal quotation marks and citations omitted]; see NYC Admin. Code § 8-107 [15] [a]); however, the NYCHRL places the "burden on the employer to demonstrate lack of a safe and reasonable accommodation and to show undue hardship" (Lazzari v New York City Department of Parks and Recreation, 751 Fed Appx 100 at 102; see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 835 [2014]).
The Court of Appeals has held that, "[i]n light of the importance of the employer's consideration of the employee's proposed accommodation, the employer normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. And, the employer cannot present such a record if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request. Consequently, to prevail on a summary judgment motion with respect to a State HRL claim, the employer must show that it engage[d] in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the accommodation requested" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d at 837 [internal quotation marks and citations omitted]).
Here, this Court finds that Gordon sets forth a prima facie claim for failure to provide a reasonable accommodation based on her disability under the NYSHRL. As previously discussed, Gordon had been certified as a medical marijuana patient at the time that she was discharged from her duties and, thus, CEI's argument that she was not "disabled" under the law is without merit (Doc. 40 at 32) (see Public Health Law § 3369; NYC Admin. Code § 8-102 [16] [a]). At the time of her termination, CECNY had notice of Gordon's disability, giving rise to a reasonable accommodation claim. Although CEI contends that Gordon's proposed accommodation is facially unreasonable because she is essentially asking it to "ignore her unlawful drug use on December 17, 2016" and is requesting that the reasonable accommodation be to let her keep working (Doc. 40 at 29), this Court acknowledges that the "reasonableness of an employer's accommodations is a 'fact-specific' question that often must be resolved by a fact finder except in circumstances where the existing accommodation was 'plainly reasonable'" (Noll v International Business Machines Corp., 787 F3d at 94; see Wernick v Federal Reserve Bank of New York, 91 F3d 379, 385 [2d Cir 1996]).
Moreover, there is an issue of fact as to whether defendants engaged in a good faith interactive process to assess her needs and the reasonableness of the accommodation requested, which is required under both the NYSHRL and NYCHRL (see D'Amico v City of New York, 159 AD3d 558, 558 [1st Dept 2018]; Chernov v Securities Training Corp., 146 AD3d 493, 494 [1st Dept 2017]; Miloscia v B.R. Guest Holdings, LLC, 94 AD3d 563, 564 [1st Dept 2012]) and is a "factor to be considered in deciding whether a reasonable accommodation was available for the employee's disability at the time the employee sought accommodation" (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d at 838).
CEI claims that Gordon's request would "create an undue hardship" because it would, inter alia, force CECNY to violate the Drug Free Workplace Act ("DFWA"), which imposes penalties on employees for drug abuse violations, and that it would "allow employees to self-medicate and avoid discipline if they obtained a prescription for the medication they abused after the fact" (Doc. 40 at 35). However, this Court finds that there is an issue of fact as to whether an accommodation in this instance would create an undue hardship, especially considering the proof establishing that, at least in certain circumstances, the drug policy allows employees to continue working even after failing a drug test (Doc. 46 at Exhibit A). Based on the foregoing, that branch of CEI's motion seeking dismissal of Gordon's claims for failure to provide reasonable accommodation under both the NYSHRL and NYCHRL is denied.
Amendment of the Complaint
"Leave to amend a pleading should be freely given as a matter of discretion in the absence of prejudice or surprise" (Cafe Lughnasa Inc. v A & R Kalimian LLC, 176 AD3d 523, 523 [1st Dept 2019] [internal quotation marks and citations omitted]). "However, leave will be denied where the proposed amendment lacks merit or would serve no purpose other than to 'needlessly complicate and/or delay discovery and trial'" (id., quoting Verizon N.Y. Inc. v Consolidated Edison, Inc., 38 AD3d 391, 391 [1st Dept 2007]). "Where, however, an application for leave to amend is sought after a long delay and the case has been certified as ready for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent and cautious" (Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1017 [2d Dept 2008] [internal quotation marks and citations omitted]).
Here, Gordon moves to add CECNY as a defendant in this action. This Court agrees with CEI that Gordon's attempt to amend the complaint at this juncture, after the filing of a summary judgment motion and after the filing of the note of issue is "a dilatory litigation tactic" which generally would warrant denial of the motion (501 Fifth Ave. Co., LLC v Yoga Sutra, LLC, 2013 NY Slip Op 31236[U], 2013 NY Misc LEXIS 2478, *9 [Sup Ct, NY County 2013]). However, this Court's 6/4/2018 order, which denied Gordon's motion to amend the complaint with leave to renew upon proper papers, acknowledged that "plaintiff's claims against CECNY have a colorable basis" considering the proof establishing that CECNY was Gordon's direct employer (Doc. 30) and, as highlighted by CEI's opposition papers, this Court failed to specify a time frame for the renewal in its decretal (Doc. 63). CEI is also CECNY's corporate parent company and, thus, this Court finds that the amendment to the summons and complaint will not prejudice CEI, and that an expedited discovery schedule will eliminate any prejudice.
The remaining arguments are either without merit or need not be addressed given the findings above.
Therefore, in accordance with the foregoing, it is hereby:
ORDERED that defendant Consolidated Edison, Inc.'s summary judgment motion seeking dismissal of the complaint is denied; and it is further
ORDERED that plaintiff Kathleen May Gordon's motion for leave to file an amended summons and complaint to add Consolidated Edison Company of New York, Inc. as a defendant is granted; and it is further
ORDERED that plaintiff Kathleen May Gordon shall serve her amended summons and complaint on defendants Consolidated Edison Inc. and Consolidated Edison Company of New York, Inc., in the form annexed to plaintiff's moving papers (Doc. 53), within 20 days after service of this order with notice of entry; and it is further
ORDERED that, within 20 days of the entry of this order, plaintiffs' counsel shall serve a copy of this order, with notice of entry, upon all parties and upon the County Clerk (Room 141 B) and the Clerk of the Trial Support Office (Room 158), who are hereby directed to mark the court's records to note the amendment of the caption; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that the parties shall appear for a status conference in Room 280, 80 Centre Street, on July 21, 2020 at 2:15 P.M., unless otherwise notified by the Court; and it is further
ORDERED that this constitutes the decision and order of this Court. 3/16/2020
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.