Opinion
26630/08.
March 7, 2011.
The following papers numbered 1 to 13 read on this amended motion by defendants for summary judgment.
Numbered
Papers Amended Notice of Motion-Affirmation-Exhibits......... 1-4 Memorandum of Law..................................... 5-6 Supplemental Affirmation in Further Support of Motion. 7-8 Affirmation in Opposition-Exhibit..................... 9-11 Reply................................................. 12-13Upon the foregoing papers it is ordered that the motion is decided as follows:
Motion by defendants for summary judgment dismissing the complaint is granted.
In the first instance, contrary to the contention of plaintiff's counsel, the motion is timely under CPLR 3212(a). Plaintiff's counsel contends that the instant motion is untimely because the note of issue was filed on May 19, 2010 and the instant motion was filed on November 1, 2010, in excess of the 120-day statutory period. Pursuant to CPLR 3212 (a), motions for summary judgment must be made no later than 120 days after the note of issue is filed, unless a different date is ordered by the Court, except with leave of court on good cause shown.
However, a summary judgment motion is "made" for purposes of calculating the time period under CPLR 3212(a) when the notice of motion is served, not when it is filed (see Russo v. Eveco Development Corp., 256 AD 2d 566 [2 nd Dept 1998]). The original notice of motion was served upon plaintiff's counsel on September 16, 2010, within the 120-day period. However, it was not filed with the Clerk of the Court. Defendants thereafter served the instant amended notice of motion on October 27, 2010 and filed it on October 29, 2010.
Although neither counsel for plaintiff nor counsel for defendants raises the issue, the Court notes that notwithstanding that the instant motion was served more than 120 days after the note of issue was filed, its timeliness is to be calculated based upon the date of service of the first notice of motion, even though that motion was never filed with the Court, where defendants thereafter served, and filed, a second identical motion (see Rivera v Glen Oaks Village Owners, Inc., 29 AD 3d 560 [2nd Dept 2006]). "The mere fact that defendant, after having served its original notice of motion on the plaintiff's attorney in a timely fashion, filed new motion papers seeking the same relief, was not fatal to such motion" (id. at 562) . Therefore, the instant motion is timely.
Plaintiff, who had been employed by Randall's Island Sports Foundation (RISF) as supervisor of the maintenance crew at Icahn Stadium, and who was dismissed on December 26, 2007, commenced the underlying action on October 30, 2008 seeking damages under the Americans with Disabilities Act (ADA) ( 42 U.S.C. § 12101, et seq.) and the New York State Human Rights Law (NYSHRL) (Exec. Law § 290, et seq.) alleging discrimination. He alleges that he was fired because of his physical disability incurred after a work-related accident. Plaintiff's first cause of action against RISF alleges violation of the ADA. The second cause of action alleges violation of the NYSHRL. The third cause of action is against the individual defendants for aiding and abetting violations of the NYSHRL. The fourth cause of action against RISF alleges negligent hiring, retention and supervision of the individual defendants with regard to their alleged discriminatory actions in violation of "both federal and state law."
The action was removed to the United States District Court for the Eastern District of New York pursuant to a notice of removal filed by defendants on December 3, 2008. Thereafter, pursuant to the stipulation and order dated January 16, 2009, so-ordered by Judge Roslynn R. Mauskopf, all of plaintiff's federal claims, including those brought pursuant to the ADA, were dismissed with prejudice. The remaining causes of action under state law were remanded to the Supreme Court under the present original index number. Therefore, the only causes of action remaining upon remand are plaintiff's second and third causes of action and so much of his fourth cause of action as is predicated upon a violation of state law.
Plaintiff's job as supervisor of the maintenance crew at Icahn Stadium entailed setting up for concerts and events at the stadium, overseeing the track and field equipment and performing the cleanup after the concerts. He would also drive around in a golf cart with a walkie-talkie and would instruct his staff to attend to whatever condition he would see.
Plaintiff sustained torn patellas of both knees on July 30, 2007 when he slipped and fell while running on the stadium track as he was going to the site of a broken water main. Plaintiff underwent surgery the next day. His legs were in a cast for approximately three months and, thereafter, he was confined to a wheelchair for over one month. He then transitioned to a walker, then crutches.
His physician originally estimated that he could return to work, doing limited desk duty only and no physical work, on September 17, 2007. He later revised plaintiff's return date to October 15, 2007 and subsequently pushed back plaintiff's return date to December 1, 2007.
Plaintiff testified in his deposition that he returned to work on December 4, 2007. He received his full pay during the entire period of his leave, notwithstanding that he had exhausted both his annual leave and sick leave time. When he returned to work, he resumed the same work he did before his accident. He did "office details", set up schedules for the crews and stationed the crew in different areas. He was using one arm crutch when he returned to work. However, he was restricted by his physician to office duty only. He was instructed by his immediate supervisor, Tom Paliswiat, who was recreation manager, to work the team from his office. Plaintiff would not have to go out to the field or stadium for any reason because he had a crew chief under him. When asked whether he met any resistance from Paliswiat or Aimee Boden, the executive director of RISF, about being assigned to desk duty, plaintiff responded in the negative. He also testified that the desk duty he was performing when he came back to work in December 2007 was the same work he did prior to the accident.
Plaintiff also testified that notwithstanding that his physician's instructions were that he should be restricted to desk duty, he would have been able to ride around in the golf cart because he would be sitting down and because he could have staff members drive him around. Nevertheless, during the four days after he returned to work, he did not use the golf cart because he was instructed not to by Paliswiat, who also told him that he could work from his office and have another staff member go to the sites for him. When asked how his injury affected his ability to work, plaintiff stated that it did not affect his ability to work because he did everything from his office and had staff that worked underneath him.
On the fourth day after returning to work, he went for a scheduled doctor's appointment and was informed that he might need a second surgery. Plaintiff testified that he went back to work the same day and gave Paliswiat the doctor's report and informed him that he might have to have another surgery. Plaintiff testified that Paliswiat told him to take a couple of days off and that he would get back to him. He also represents that he was told by Paliswiat to attend the office Christmas party, which he did. Plaintiff also testified that a few days after the Christmas party, on December 26, 2007, he was called on the telephone by Damian DeStefano, personnel director of RISF, who informed him that he was terminated.
Paliswiat, in his deposition, testified, inter alia, as follows:
Throughout the time between plaintiff's release from the hospital after his surgery to the time he returned to work on December 7, 2007, Paliswiat and plaintiff were in communication by telephone. Mostly it was plaintiff or his wife who called Paliswiat but on occasion Paliswiat would call plaintiff. The subjects of the conversations concerned how plaintiff was doing and concerning certain paperwork that had to be filled out — health insurance forms, disability and Workers' Compensation forms. Plaintiff initiated most of the phone calls to express his fear of being fired. Paliswiat did not have the authority to fire plaintiff; only Aimee Boden had that authority. Paliswiat did not speak with Boden personally about plaintiff. He only relayed the substance of his conversations with plaintiff to DeStefano, the personnel director. Paliswiat testified that DeStefano, who communicated with Boden, informed him that the decision was made to hold onto plaintiff. Paliswiat's only involvement was to make sure that the aforementioned paper work was properly completed and returned to DeStefano.
When plaintiff returned to work on December 4, 2007, he appeared very weak and had a walker. Paliswiat inquired of him whether his doctor had given him permission to return to work, and plaintiff gave him a note from his doctor saying that he could come back to work but that he could do only office work, no physical labor at all. Therefore, Paliswiat assigned him to stay in his office. He did not give him any work for fear that he would fall and injure himself again. Although he could, in theory, supervise the crew, the crew had already been assigned their work. He tried a couple of times to get in a golf cart to go check on their work, but Paliswiat told him to return to his office. Plaintiff did not go out into the field at all but would walk the halls and go to Paliswiat's office on occasion. Paliswiat told plaintiff that he "would have to figure out what he was going to do, set up some assignments for him, things that he could do from the office." Paliswiat testified that he would have eventually found something for him to do in his office to keep him in his position.
Plaintiff came to Paliswiat on some unspecified date and told him that he had a doctor's appointment on December 11th and needed the day off. After plaintiff went to the doctor on December 11th, Paliswiat had a conversation with him the day after, on December 12th. Plaintiff apprised Paliswiat that his doctor informed him that he needed a second operation for his knees and that the doctor recommended that he no longer work but go home. Paliswiat thereafter apprised DeStefano. He told DeStefano that plaintiff informed him that his doctor suggested that he not go to work. At the Christmas party, plaintiff expressed a desire to come back to work. However, Paliswiat told him he needed a doctor's note to come back. Paliswiat did not know and was not informed by plaintiff when the second surgery would take place.
After the Christmas party, Paliswiat had a conversation with DeStefano and was told that they were going to let plaintiff go. The only reason given to him as to why they were letting plaintiff go was that they could not keep him on the payroll any longer. On December 26th, DeStefano called Paliswiat and told him that he was going to have a conference call with plaintiff. He then called back for that conference call. DeStefano informed plaintiff at the conference call that his services were no longer needed and that RISF was letting him go. Paliswiat did not participate in the conference call other than to inform plaintiff that he was also on the line.
Boden testified in her deposition that while plaintiff was out of work he continued to receive his full salary. Notwithstanding that his sick and annual leave time had expired, she decided to help plaintiff by providing him uninterrupted full-time salary and employment during his leave.
She testified that she had a conversation with DeStefano after being informed by him that plaintiff would have to have another surgery and they discussed whether they could possibly manage to retain plaintiff for another six months while he was out for a second round of surgery. She explained that what led her to believe that he would be out for another such prolonged period of time was that the second surgery was going to be a "re-do" of the first surgery. She did not know when the second surgery was scheduled to take place, however.
Dr. Ronald Grelsamer, plaintiff's orthopedic surgeon, testified in his deposition concerning his various notes, which were marked as exhibits at his deposition and were authenticated by him, and which are annexed to the moving papers. His first note indicated that plaintiff could return to work on September 17, 2007. A second note revised plaintiff's return date to October 15, 2007 and a third note extended his return date again to December 1, 2007. Dr. Grelsamer testified that he restricted plaintiff to light duty, meaning that he could not perform any physical activities, such as lifting, pushing or climbing, but could only do sedentary work that involved sitting, i.e., desk work. Dr. Grelsamer was concerned that plaintiff might otherwise injure himself again. His note dated October 26, 2007 in which he cleared plaintiff to return to work as of December 1, 2007, states, "Light duty as of 12/1/2007. Desk work only. No prolonged walking. No stairs, crouching, running."
Contrary to Paliswiat's recollection that plaintiff's medical appointment with him was on December 11th, annexed to the moving papers is Dr. Grelsamer's letter addressed to Workers' Compensation dated December 7, 2007, indicating that plaintiff's examination was, in fact, conducted on December 7, 2007. That letter further indicates that plaintiff may work light duty, but he is at risk of falling and injuring himself further. Plaintiff was also mistaken as to the date of his medical examination, also believing that it was on December 11, 2007, as he indicated in his discrimination complaint filed with the Equal Employment Opportunity Commission (EEOC) (a copy of which is annexed to the moving papers). Also, although plaintiff testified in his deposition that after his doctor's appointment he returned the same day with the note from his doctor and informed DeStefano that he might need another surgery, while DeStefano stated in his deposition that plaintiff took the day of his examination off and brought him the doctor's note the next day informing him that he would need a second surgery, plaintiff stated in his discrimination complaint with the EEOC that he went for his medical appointment on December 11, 2007 and thereafter told Paliswiat on December 13, 2007 that he would need another surgery.
Also annexed to the moving papers is a statement by plaintiff to the EEOC dated on some unspecified date in 2008, in which he states, inter alia, "In December of 2007, I told my manager, Tom Paliswiat that my doctor had said I needed another surgery for both of my knees. . .I was out of work until December 4, 2007. December 11, 2007 I had seen my doctor and he told me that I needed another surgery. I told my recreation manager Tom Paliswiat. December 26, 2007 the day after Xmas I received a phone call from Daeman De-Stefano stating that I was being terminated because my workers composition case is too complicated. Tom Paliswiat was a third on party the phone, but he did not say a word (My boss) it was Daeman De-Stefano who was just hired two weeks in payroll that told me that I was terminated over the phone. He stated that he was given a direct order by Assistant director Aimee Boden. . . . I felt that if I didn't tell my manager Tom Paliswiat about my disability I would not have gotten fired. Tom Paliswiat could not find it in his heart to fire me so Daeman had to do it" (sic).
In his discrimination complaint filed with the EEOC, sworn to by plaintiff on April 15, 2008, plaintiff stated, inter alia, "RISF granted me a reasonable accommodation by allowing me to perform my supervisory duties at work from a desk. . . .On or about December 11, 2007, I saw my doctor who informed me that I needed to undergo another surgery pending authorization/approval from Workman's Compensation. On or about December 13, 2007 I told my recreation manager, Tom Paliswiat, that I needed another surgery for both of my knees . . . Tom told me to take the rest of the week off. I took the rest of the week off, as Tom recommended, and went back to work the following week. On December 21, 2007, I filled out the necessary medical forms in preparation for my surgery . . . On December 26, 2007 (my day off), I received a call at home from Daeman DiStefano, RISF, who notified me that I had been terminated effective that day. I was never given any warning. I was given no reason for my termination, but heard that my Workman's Compensation claim was too complicated" (sic).
Defendants have established a prima facie entitlement to summary judgment by proffering evidence that there was no violation of the NYSHRL.
Pursuant to § 296(a) of the NYSHRL, it is unlawful discriminatory practice for "an employer. . .because of an individual's. . .disability. . .to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."
Plaintiff's second cause of action alleges that defendants discriminated against him in violation of the NYSHRL because of his disability, in that defendants denied him the opportunity to work crew chief and created, condoned and failed to prevent or stop a hostile work environment that included "severe and pervasive harassment" of plaintiff, thus denying him equal terms and conditions of employment, and in terminating him from his employment.
With respect to plaintiff's allegation that he was denied the opportunity to work as "crew chief" (in actuality, his position was that of supervisor), the undisputed record, on this motion, is that his position as supervisor and his office were held open for him during his medical leave of over four months, that he continued to receive his full salary during that period, notwithstanding that all his annual leave and sick leave accruals had been exhausted within days of his initial hospitalization and notwithstanding that RISF had no obligation to keep him on the payroll, that he resumed his position as supervisor when he returned to work on December 4, 2007, with full pay, and that reasonable accommodation was made to him to allow him to maintain that position. It is undisputed that he was allowed to maintain his position and work from his desk. Indeed, plaintiff admitted in his sworn discrimination complaint that he was afforded reasonable accommodation to allow him to perform his supervisory duties from his desk, and he did not include in his complaint a claim of discrimination based upon a refusal to make reasonable accommodations to him, pursuant to § 296(2)(c)(i).
Moreover, there is no question of fact, on this record, as to whether plaintiff was subjected to a hostile work environment within the meaning of the statute.
The courts have recognized that denial of equal conditions of employment may be accomplished by the creation of a hostile work environment in which "'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'" (Beharry v Guzman, 33 AD 3d 742, 743 [2nd Dept 2006], citing Forrest v Jewish Guild for the Blind, 3 NY 3d 295, 310). No such conduct is alleged so as to support a claim of a hostile work environment.
When asked in his deposition in what respects he felt that he was subjected to a hostile work environment, plaintiff responded, "When I went back to work, they kept on asking me am I going to fall, are you going to fall. I'm like, I can still do my work. Tom Paliswiat kept asking me, like I'm nervous to send you out in the field and I'm telling him." Thereupon, when asked if there were any other examples of how he suffered a hostile work environment, plaintiff replied, "No."
The mere expression of concern by Paliswiat to plaintiff that he might re-injure himself if he engages in physical activity cannot be interpreted as constituting hostile behavior at all, much less behavior so hostile and pervasive as to create an abusive working environment, especially since Dr. Grelsamer, plaintiff's own treating orthopedic surgeon, expressed the same concern. Indeed, it was out of this concern that Dr. Grelsamer gave explicit instructions that plaintiff was not to do any physical activity at all but be restricted to sedentary office duty only. Paliswiat honored the physician's instructions and made certain that plaintiff did not venture from his office to go into the field. The record on this motion demonstrates that Paliswiat's actions, far from being abusive or hostile, were protective and supportive. Nowhere does plaintiff express the belief that the condition of his employment was negatively altered by the direction he received from Paliswiat to stay in his office in compliance with his physician's instructions. Nowhere does plaintiff state that he felt intimidated, insulted or ridiculed as a result of having to do his work from his office, and even if he did, this Court cannot see how plaintiff's modified work duties imposed by his employer in compliance with his own physician's specific instructions could possibly be interpreted as creating an abusive working environment motivated by discrimination. Therefore, no issue of fact is presented as to whether defendants created a hostile work environment.
Defendants have also established that plaintiff was not discharged because of discrimination over his disability. "To prevail on their summary judgment motion, 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" (Forrest v Jewish Guild for the Blind,supra at 310). Defendants have met their burden.
In order to establish a prima facie case of discrimination, plaintiff must "demonstrate that he suffers from a disability, he was discharged, he was qualified to hold the position, and the discharge occurred under circumstances giving rise to an inference of discrimination based on his disability" (Engelman v Girl Scouts-Indian Hills Council, Inc., 16 AD 3d 961, 962 [3rd Dept 2005]). The evidence on this record does not raise a triable issue of fact as to whether plaintiff's discharge occurred under circumstances giving rise to an inference of discriminatory intent.
Plaintiff was not discharged until after defendants were apprised that he had again torn the patellas of both knees and that he would have to undergo surgery for a second time, presumably requiring him to be absent for another extended period of time. The Human Rights Law does not require an employer to retain an employee who cannot work (see Regal Entertainment Group v New York State Division of Human Rights, 61 AD 3d 1102 [3rd Dept 2009]). The undisputed facts presented on this record are that plaintiff was out of work for over four months, continued to be paid his full salary even though he had no sick leave or annual leave time accumulated, and that less than a week after he returned to work he informed defendants that he would have to leave again to have another surgery.
Boden testified that she discussed with DeStefano whether they could continue to retain plaintiff while he was out again for another extended period. She presumed that since the second surgery was going to be a "re-do" of the first, plaintiff would be out for a similarly long period of time. Plaintiff cites no authority, and the Court is unaware of any, stating that an employer has any obligation to retain an absent employee after all his sick and annual leave time is exhausted.
The circumstances of plaintiff's discharge clearly do not give rise to any inference of discrimination. It is conceded that defendants decided to retain plaintiff during the lengthy period of his absence and continued to pay him his full salary even though he had no accrued sick or vacation time and even though defendants were not required to do so. When he returned to work, reasonable accommodation was made to him, in compliance with his physician's instructions and in consideration of his disability in order to keep him in his position as supervisor. It was not until defendants were apprised that he would be out again, presumably for a similarly long time (an estimation which, in fact, subsequently proved to be correct), that the decision was made to let him go. These circumstances fail to raise any inference of a discriminatory motive on the part of defendants to fire plaintiff because of his disability. The evidence is that they wanted to keep plaintiff and made every effort to accommodate him, but that after they were informed that he would need to have the same surgery again, it was no longer feasible to keep plaintiff on the payroll through another lengthy period of absence. That plaintiff was gratuitously kept on the payroll for over four months and was not fired despite not being able to come to work and despite having no sick leave or vacation time, that the decision was made to keep him and pay him his full salary until he returned, and that when he returned, he resumed his position as supervisor and was accommodated according to his physician's instructions demonstrate that the reason proffered by defendants for their discharge of plaintiff, namely, that they could not keep him on the payroll through another anticipated absence of several months, was not a mere pretext for a desire to fire him for discriminatory reasons. No evidence to the contrary has been proffered by plaintiff.
Therefore, defendants are entitled to summary judgment dismissing plaintiff's second cause of action alleging violation of the NYSHRL. Since there is no basis, on this record, for a claim of disability discrimination, defendants are also entitled to summary judgment dismissing plaintiff's third cause of action for aiding and abetting violations of the NYSHRL and the fourth cause of action against alleging negligent hiring, retention and supervision of the individual defendants with regard to their alleged discriminatory actions.
Accordingly, the motion is granted and the complaint is dismissed.