Opinion
No. 102391/11.
2012-11-14
Ingrid LaCOURT, Plaintiff, v. SHENANIGANS KNITS, LTD., Kathy Dal Piaz, a/k/a Katarina Dal Piaz Liebowitz, Sml Sport Ltd., a/k/a Wyandotte Circle Corp., and Lauren Hansen, Inc., All Named, Defendants Constituting an Integrated Enterprise and Single Employer, and Kathy Dal Piaz, a/k/a Katarina Dal Piaz Liebowitz, Individually, as Aider and Abettor, Defendants.
Massoud & Pashkoff, LLP, New York, for Defendant. Mavromihalis Pardalis, et al., astoria, for plaintiff.
Massoud & Pashkoff, LLP, New York, for Defendant. Mavromihalis Pardalis, et al., astoria, for plaintiff.
DONNA MILLS, J.
In this action, plaintiff Ingrid LaCourt (LaCourt) sues her former employer to recover damages for alleged disability-based employment discrimination. The complaint originally asserted nine causes of action for: disability discrimination under the New York State Human Rights Law (Executive Law § 296[1] ) (N.Y.SHRL) and the New York City Human Rights Law (Administrative Code of the City of New York [Administrative Code] § 8–107[1] )(N.Y.CHRL) (first and second); race and national origin discrimination under the NYSHRL and NYCHRL (third and fourth); aiding and abetting discrimination, as against defendant Kathy Dal Piaz individually (fifth); race, national origin, and disability discrimination under Civil Rights Law § 40–c (2) (sixth); intentional infliction of emotional distress (seventh); violation of the Family and Medical Leave Act (29 USC § 2601 et seq.) (FMLA) (eighth); and reinstatement (ninth). By prior order of this court, dated October 6, 2011, the causes of action for race and national origin discrimination, for violation of the FMLA, and for intentional infliction of emotional distress were dismissed, and the claims against Lauren Hansen, Inc. were dismissed in their entirety. Defendants Kathy Dal Piaz (Dal Piaz), and SML Sport Ltd., a/k/a Wyandotte Circle Corp. (SML)(together, SML or defendants) now move for partial summary judgment dismissing the first, second and sixth causes of action.
Plaintiff cross-moves for partial summary judgment on the first, second, and sixth causes of action.
Defendant Shenanigans Knits, Ltd. has not appeared in this action.
Neither side has moved on, or otherwise addressed, the fifth cause of action, for aiding and abetting, or the ninth cause of action, for reinstatement.
BACKGROUND
The material facts in this case are largely undisputed. Plaintiff worked for SML as a technical designer from May 2009 until her termination on May 14, 2010. She began working for SML, through a temporary placement agency, as a freelance designer, and was hired as a full-time employee in August 2009, for the position of Senior Technical Designer for SML's Lauren Hansen division. According to Dal Piaz, President of SML, plaintiff was essentially responsible for running the operations of the Lauren Hansen division, from initial design development through final production of its products. Dal Piaz Affidavit in Support of Defendants' Motion (Dal Piaz Aff.), ¶ 3. There is no dispute that plaintiff performed her work satisfactorily. Plaintiff testified, without contradiction, that she performed her job duties with “enthusiasm, dedication and loyalty.” LaCourt Affidavit in Support of Cross–Motion (LaCourt Aff.), ¶ 3.
In March 2010, plaintiff was diagnosed with breast cancer, and informed her supervisor, Jane Keaveney, of her diagnosis. Id., ¶ 8. After discussing her prognosis and treatment options with her doctors and her family, plaintiff decided to have a double mastectomy. Id., ¶ 11. Her surgery was initially scheduled for April 28, 2010, but was rescheduled by her doctor, for May 17, 2010. Id., ¶¶ 12–13. Plaintiff informed her supervisor about the scheduled surgery, and the date was approved. Id.
On or about April 27, 2010, plaintiff met with Dal Piaz to discuss her upcoming surgery. Id., ¶ 15; Dal Piaz Aff., ¶ 5; see E-mail dated April 27, 2010, Ex. F to Nohavicka Affirmation in Support of Plaintiff's Cross–Motion (Nohavicka Aff.). At that meeting, Dal Piaz told plaintiff that, in view of the time plaintiff would need to recover from surgery, and due to the importance of plaintiff's position and the adverse effects of her absence on defendant's business, plaintiff's employment would be terminated as of May 14, 2010. LaCourt Aff., ¶ 16; Dal Piaz Aff., ¶¶ 5–6; see E-mail, dated May 4, 2010, Ex. G to Nohavicka Aff. Dal Piaz also told plaintiff that SML would pay her medical coverage for three months, after which plaintiff could apply for COBRA benefits. LaCourt Aff., ¶ 16; Dal Piaz Aff., ¶ 6; see E-mail dated May 4, 2010, Ex. G to Nohavicka Aff. The following week, plaintiff called in sick on Monday, May 3, and at her doctor's recommendation, she did not return to work prior to her scheduled surgery. LaCourt Aff., ¶¶ 27–28, 32; Dal Piaz Aff., ¶ 7. SML paid plaintiff's salary through May 14, 2010, and provided medical coverage for three months.
Defendants move for summary judgment dismissing plaintiff's claims of disability discrimination on the grounds that, because plaintiff was not able to work for more than three months after her cancer surgery, her disability “prevented her from performing in a reasonable manner the activities involved in her job,” and her termination, therefore, was lawful. Memorandum of Law in Support of Defendants' Motion, at 7, 8. Plaintiff cross-moves for summary judgment on the basis that defendants failed to reasonably accommodate her disability, as required by law. Memorandum of Law in Opposition to Defendants' Motion and in Support of Plaintiff's Cross–Motion, at 13.
DISCUSSION
To prevail on a motion for summary judgment, the movant must, by submitting evidentiary proof in admissible form, establish the cause of action or defense “sufficiently to warrant the court as a matter of law in directing judgment.” CPLR 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” Id. at 853. Once such showing has been made, to defeat summary judgment, the opposing party must show, also by producing evidentiary proof in admissible form, that genuine material issues of fact exist which require a trial of the action. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman, 49 N.Y.2d at 562. The evidence must be viewed in a light most favorable to the nonmoving party (Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007] ), and the motion must be denied if there is any doubt as to the existence of a triable issue of fact. See Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 (1978); Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 (1957).
In employment discrimination cases, courts also urge caution in granting summary judgment, because direct evidence of an employer's discriminatory intent is rarely available. See Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631 (1997); Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29, 43–44 (1st Dept 2011). “[A]ffidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.' “ Sibilla v. Follett Corp., 2012 WL 1077655, *5, 2012 U.S. Dist LEXIS 46255, *13–14 (ED N.Y.2012), quoting Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F3d 1219, 1223 (2d Cir1994); see Desir v. City of New York, 453 Fed Appx 30, 33 (2d Cir2011).
Under both the NYSHRL and the NYCHRL, it is an unlawful discriminatory practice for an employer, because of an individual's disability, to refuse to hire or to discharge such individual, or otherwise to discriminate against such individual in the terms, conditions and privileges of employment. Executive Law § 296(1)(a); Administrative Code § 8–107(1)(a). To establish a case of disability discrimination, a plaintiff must show that she suffers from a disability, and the disability caused the behavior for which she was terminated. Matter of McEniry v. Landi, 84 N.Y.2d 554, 558 (1994); see Vig v. New York Hairspray Co., L.P., 67 AD3d 140, 146 (1st Dept 2009). “Disability” is defined, under the NYSHRL, as “a physical, mental or medical impairment ... which, upon the provision of reasonable accommodations, do[es] not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.” Executive Law § 292(21); see Phillips v. City of New York, 66 AD3d 170, 178 (1st Dept 2009); Pimentel v. Citibank, N.A., 29 AD3d 141, 145 (1st Dept 2006). The NYCHRL, which provides greater protections than the NYSHRL ( see Williams v. New York City Hous. Auth., 61 AD3d 62, 66 [1st Dept 2009] ), simply defines “disability” as “any physical, medical, mental or psychological impairment, or a history or record of such impairment.” Administrative Code § 8–102(16)(a); see Phillips, 66 AD3d at 181.
An employer's refusal to reasonably accommodate an employee's known disability also constitutes discrimination under the NYSHRL and the NYCHRL. SeeExecutive Law § 296(3)(a); Administrative Code § 8–107(15)(a); Miloscia v. B.R. Guest Holdings, LLC, 33 Misc.3d 466, 473 (Sup Ct, N.Y. County 2011), affd in part & mod in part,94 AD3d 563 (1st Dept 2012); see generally Phillips v. City of New York, 66 AD3d 170,supra. “Reasonable accommodation,” under the NYSHRL, means actions which permit a disabled employee “to perform in a reasonable manner the activities involved in the job ... and include, but are not limited to ... job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business.” Executive Law § 292 (21–e); see Jacobsen v. New York City Health & Hosps. Corp., 97 AD3d 428, 431 (1st Dept 2012); Pimentel, 29 AD3d at 145.
The NYCHRL defines “reasonable accommodation” as “such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity's business. The covered entity shall have the burden of proving undue hardship.” Administrative Code § 8–102(18); see also Administrative Code § 8–107(15)(b) (employer may assert, and must prove, affirmative defense that disabled employee “could not, with reasonable accommodation, satisfy the essential requisites of the job”); Harris & Assocs. v.. deLeon, 84 N.Y.2d 698, 706 n 2 (statute explicitly puts burden on employer to prove inability to make reasonable accommodation). Thus, “there are no accommodations that may be unreasonable' if they do not cause undue hardship” (Phillips, 66 AD3d at 182), and “there is no accommodation (whether it be indefinite leave time or any other need created by a disability) that is categorically excluded from the universe of reasonable accommodation.” Id.; see Forgione v. City of New York, 2012 WL 4049832, *9, 2012 U.S. Dist LEXIS 130960, *26–27 (ED N.Y.2012).
The NYSHRL and the NYCHRL further require that, as a first step in providing a reasonable accommodation, an employer must “engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested.” Phillips, 66 AD3d at 176;see Jacobsen, 97 AD3d at 431–432;Miloscia, 94 AD3d at 564. Engagement in an individualized interactive process is itself an accommodation, and, generally, the failure to so engage is a violation of the state and city statutes. See Miloscia, 94 AD3d at 564;Jochelman v. New York State Banking Dept., 83 AD3d 540 (1st Dept 2011); Phillips, 66 AD3d at 176;Pimentel, 29 AD3d at 149;Vinokur v. Sovereign Bank, 701 F Supp 2d 276, 292 (ED N.Y.2010).
Moreover, even in the absence of a specific request by an employee, an employer generally has an independent duty to investigate feasible accommodations. See Phillips, 66 AD3d at 189. This view comports with the statutory and regulatory language, which provides, under the NYSHRL, that “[t]he employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested.” 9 NYCRR 466.11(j)(4). The NYCHRL also affirmatively requires that, even in the absence of a specific request, an employer “shall 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].” Administrative Code § 8–107(15)(a); see Phillips, 66 AD3d at 189.
In order to establish that an employer failed to reasonably accommodate an employee's disability, a plaintiff must show that 1) she was disabled within the meaning of the statutes; 2) the employer had notice of the disability; 3) she could perform the essential functions of her job, with a reasonable accommodation; and 4) the employer refused to make a reasonable accommodation. See Vinokur, 701 F Supp 2d at 293;Roberts v. AIG Global Investment Corp., 2008 WL 4444004, *5, 2008 U.S. Dist LEXIS 76891, *22 (SD N.Y.2008); Pimentel, 29 AD3d at 145–146. There is no dispute that plaintiff's breast cancer constituted a disability within the meaning of the relevant statutes ( see e.g. Phillips v. City of New York, 66 AD3d 170,supra [breast cancer considered a disability under NYSHRL and NYCHRL] ), and that defendants had notice of plaintiff's condition and need for treatment. Defendants also do not deny that plaintiff was terminated after they were informed that she would need several months to have and recover from cancer surgery. Defendants argue, however, that they lawfully terminated plaintiff's employment because, during the time that she needed to take medical leave, she would be completely unable to work. Their argument, in essence, is that because she required several months off from work, she could not perform the essential functions of her job, including going to work, and, therefore, was not protected by the state and local human rights statutes. See Miloscia, 33 Misc.3d at 475;Adams v. Master Carvers of Jamestown, Ltd., 91 Fed Appx 718, 721 (2d Cir2004).As plaintiff correctly observes, defendants' argument completely ignores the statutory requirement to consider an accommodation for plaintiff's disability, and, to that end, to engage in an interactive process to assess the needs of plaintiff and defendants. Defendants have not shown that, as a matter of law, plaintiff could not, with a reasonable accommodation, perform her job in a reasonable manner, and that there was no accommodation that they could not provide.
Defendants fail to establish, and do not even claim, that they engaged in any “good faith interactive process ... [to] clarify what are the individual needs of the employee and the business, and identify the appropriate reasonable accommodation.” Phillips, 66 AD3d at 175. To the contrary, Dal Piaz attests that, as soon as she was informed that plaintiff would need three months to recover from surgery, she advised plaintiff, without further discussion, that defendants would need to find a replacement for her, “to ensure no loss of business continuity” (Dal Piaz Aff., ¶ 10), and that, as of May 14, 2010, plaintiff no longer had a job. Id., ¶¶ 4–6. When plaintiff inquired whether she could return to work after she recovered from surgery, Dal Piaz told her that, “because of the uncertainty as to when she would actually be able to return to work,” she could not guarantee plaintiff a position. Dal Piaz Affidavit in Further Support of Defendants' Motion (Dal Piaz Reply Aff.), ¶¶ 14–15. At plaintiff's request, Dal Piaz confirmed their conversation in writing, stating that, because plaintiff would be unable to work for two to three months, she was being fired. Id., ¶ 16; see E-mail dated May 4, 2010, Ex. 2 to Dal Piaz Aff. Dal Piaz told plaintiff to “stay in touch” and let defendants know when she was able to return to work, but she also told plaintiff that she was not promised a position. Id.
As courts have now recognized, a temporary leave of absence, even an extended leave, can be a reasonable accommodation. See Miloscia v. B.R. Guest Holdings, LLC, 94 AD3d 563,supra; Phillips v. City of New York, 66 AD3d 170,supra; see generally Graves v. Finch Pruyn & Co., 457 F3d 181, 185–186 (2d Cir2006); Adams, 91 Fed Appx at 721;Casseus v. Verizon NY, 722 F Supp 2d 326, 351 (ED N.Y.2010). Similarly, regulations implementing the NYSHRL provide that a temporarily disabled employee is protected by the law “where the individual will be able to satisfactorily perform the duties of the job after a reasonable accommodation in the form of a reasonable time for recovery.” 9 NYCRR 466.11(i)(1). “[A] requested leave of absence is an unreasonable request for accommodation, only in unusual circumstances, ... [for example] where the request is for a very long leave of absence ... [or] where it is clear that, even when the employee returns from the requested leave of absence, he or she will still be unqualified to perform the essential functions of their job.” Powers v. Polygram Holding, Inc., 40 F Supp 2d 195, 201 (SD N.Y.1999); see Adams, 91 Fed Appx at 721;Sclafani v. PC Richard & Son, 668 F Supp 2d 423, 445 (ED N.Y.2009).
Some courts have concluded “that a request for leave is unreasonable when it exceeds one year, although it does not appear that any exact number is the “red line” that demarcates the reasonable from the unreasonable.' “ Aka v. Jacob K. Javits Convention Ctr. of NY, 2011 WL 4549610, *16, 2011 U.S. Dist LEXIS 114002, *48 (SD N.Y.2011), quoting Powers, 40 F Supp 2d at 200–201;see Phillips, 66 AD3d at 179 (declining to hold that leave of one year, or more, cannot be a reasonable accommodation); see also Starr v. Time Warner, Inc., 2007 WL 4144627, *4, 2007 U.S. Dist LEXIS 88219, *11 (SD N.Y.2007) (finding a leave of absence is a reasonable accommodation, but two year leave is too long). Thus, while an employer may not be required to hold a disabled employee's position open indefinitely ( see Esposito v. Altria Group, Inc., 67 AD3d 499, 500 [1st Dept 2009]; Stamey v. NYP Holdings, Inc., 358 F Supp 2d 317, 326–327 [SD N.Y.2005] ), the employer must consider the feasability of all possible accommodations, including the availability of a leave of absence. See Phillips, 66 AD3d at 179–180.
Defendants have not demonstrated that granting plaintiff a temporary leave of two to three months, or even of seven to eight months, would have been an unreasonable accommodation. Although Dal Piaz asserts that, due to the importance of plaintiff's position, an absence of several months would have a “severe adverse impact on SML's operations” (Dal Piaz Aff., ¶ 5), defendants otherwise submit no evidence to establish that a temporary leave would create an undue hardship. While Dal Piaz also asserts that, “due to the nature of Ms. LaCourt's job responsibilities, it was impossible for SML to keep her position open indefinitely” (Dal Piaz Reply Aff., ¶ 26), there is no evidence that plaintiff was seeking an indefinite leave, or that she would have been unable to perform the functions of her job if granted time to recover.
To the extent that defendants argue that they engaged in an interactive process by advising plaintiff, after terminating her employment, to contact them when she was able to return to work, and claim that plaintiff made no effort to contact them except through her lawyer ( see Reply Memorandum of Law in Support of Defendants' Motion, at 7–8), that argument misconstrues the purpose and requirements of the human rights laws. “Implicit in the statute[s] is the requirement that the accommodation enable the employee to continue to enjoy or perform the terms, conditions or privileges of employment.” Ruhling v. Tribune Co., 2007 WL 28283, *15 n 4, 2007 U.S. Dist LEXIS 116, *46 n 4 (ED N.Y.2007). Defendants' termination of plaintiff's employment, by definition, ended her ability to engage in an interactive process or otherwise to continue to enjoy or perform the terms, conditions and privileges of employment. See Miloscia, 33 Misc.3d at 478. Therefore, defendants' suggestion to plaintiff, after she was fired, that she contact them when she was able to return to work, failed to comply with the requirement to engage in an interactive process and to consider whether a reasonable accommodation could be provided.
Where, as here, there was no interactive process, “[t]he relief available to a plaintiff for an employer's failure to engage in the interactive process will depend on whether the process could have yielded a substantive accommodation that was reasonable.” Phillips, 66 AD3d at 177. “If so, full remedies under the respective statutes are available. If not, remedies are available under the City HRL only, and are limited to those designed to respond only to the failure to engage in the interactive process.” Id. at 178 n 6;see also Hayes v. Estee Lauder Cos., 34 AD3d 735, 737 (2d Dept 2006) (“there is no controlling ... authority holding that an employer may be held liable based solely on its failure to engage in an interactive process with an employee, absent a showing that the breakdown of the interactive process led to the employer's failure to provide a reasonable accommodation”).
Further, the resolution of the issues of whether an accommodation would be “effective” and whether it would cause undue hardship for an employer is “singularly case-specific, further illustrating the need for an individualized, interactive fact-specific process.” Phillips, 66 AD3d at 180. Thus, “[t]he issue of whether an accommodation is reasonable is normally a question of fact, unsuited for a determination on summary judgment.” Scalera v. Electrograph Sys., Inc., 848 F Supp 2d 352, 367 (ED N.Y.2012), quoting Canales–Jacobs v. New York State Ofc. of Ct. Admin., 640 F Supp 2d 482, 500 (SD N.Y.2009). Plaintiff testified that she did not seek full time employment until January or February 2011, after undergoing a second, reconstructive surgery in November 2010. LaCourt Dep., at 89; LaCourt Aff., ¶¶ 46–47. Although she also testified that, after three months of recovery, she was able to resume most of her normal activities (LaCourt Dep., at 88–89), and that she might have been able to return to work sooner if SML had treated her better ( id. at 95), triable issues of fact remain as to whether the interactive process would have yielded a reasonable accommodation, and whether a leave of absence, or other accommodation, would have created an undue hardship for defendants. A further evidentiary record is necessary to resolve these issues. See Phillips, 66 AD3d at 180 n 9;see generally Administrative Code § 8–102(18) (factors to consider in determining undue hardship); 9 NYCRR § 466.11(b) (factors to consider in determining whether accommodation is reasonable or poses undue hardship).Accordingly, it is
ORDERED that the motion of defendants KATHY DAL PIAZ, a/k/a KATARINA DAL PIAZ LIEBOWITZ, and SML SPORT LTD., a/k/a WYANDOTTE CIRCLE CORP., is denied; and it is further
ORDERED that plaintiff's cross motion is denied.