Opinion
20-CV-06727 (MKV)(SN)
09-27-2022
JEFFREY M. GOLDMAN, Plaintiff, v. SOL GOLDMAN INVESTMENTS LLC, et al., Defendants.
TO THE HONORABLE MARY KAY VYSKOCIL, JUDGE.
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
Jeffrey M. Goldman sues Sol Goldman Investments LLC (“SGI”), Solil Management LLC (“Solil”), and Jane H. Goldman, alleging violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law (“NYSHRL”), New York Executive Law §§ 290 et seq., and the New York City Human Rights Law (“NYCHRL”), New York City Administrative Code §§ 8-101 et seq. ECF No. 18, Amended Complaint. Plaintiff moves for partial summary judgment for liability on his claim for disability discrimination under the NYCHRL. ECF No. 95. Defendant SGI cross-moves for summary judgment. ECF No. 104. I recommend that the Court GRANT Plaintiff's motion for partial summary judgment against all Defendants and DENY Defendant SGI's cross-motion for summary judgment.
BACKGROUND
I. Factual Background
A. Facts Relevant to SGI's Status as an Employer
Plaintiff worked as an in-house attorney for Defendants beginning in June 2000. ECF No. 105, Ex. 1 Plaintiff's Rule 56.1 Statement (“Pl. 56.1”) ¶ 1, 9. In this role, Plaintiff litigated claims related to commercial and residential real estate properties throughout NYC, including nonpayment of rent, use and occupancy claims, and holdover proceedings in rent-regulated and free market properties in housing court. Id. at ¶¶ 2, 6. He also defended against suits brought by the City of New York or individual tenants in connection with conditions in the properties. Id. at ¶ 7. The properties were owned by Defendant SGI and structured as individual limited liability companies, and SGI asserts financial control over them. Id. at ¶¶ 15, 18; see also ECF No. 98, Ex. 14. Plaintiff did not represent the properties under a formal retainer agreement. Pl. 56.1 ¶ 16.
Citations to “Pl. 56.1” refer to ECF No. 105, Ex. 1, which collates plaintiff's initial Rule 56.1 Statement in support of its motion for summary judgment and defendant's responses to each statement. Citations to “Def. 56.1” refer to ECF No. 110, which collates defendant's counterstatement of facts and plaintiff's responses to each statement.
The parties contest whether Plaintiff was an employee of both Solil and SGI. Id. at ¶ 2, 5-7. Defendants contend that SGI had no employees during the period in question, a claim Plaintiff dismisses as a legal conclusion rather than an uncontested fact. ECF No. 110, Defendant's Rule 56.1 Statement (“Def. 56.1”) ¶ 50. Solil generates no revenue, but has employees, including - formerly - Plaintiff. Pl. 56.1 ¶ 19-20. During his employment, Plaintiff received annual W-2 forms that identify Solil as his employer, and Plaintiff reported Solil as his employer on his state and federal tax returns. Def. 56.1 ¶ 52-53, 55-62. When Plaintiff filed for unemployment insurance, the New York Department of Labor sent relevant paperwork, including a “Notice of Potential Charges” and a “Notice of Protest” to Solil. Id. at ¶ 66.
SGI and Solil operate out of the same office at 1185 Sixth Avenue, 10th Floor, New York, New York 10036-2604. Pl. 56.1 ¶ 13.
Defendant Jane Goldman is a principal of Solil and, as Defendants admit, the ultimate decision maker. Id. at ¶ 10-11. She has the power to hire, fire, set the rate of pay, and set the terms and conditions of employment for employees of Solil. Id. at ¶ 26-30. Goldman is also a manager of SGI and is authorized to make management decisions on the company's behalf. Id. at ¶ 12. For example, Goldman has sole authority to settle any case that involves SGI's properties. Id. at ¶ 22. Judith Brener was the general counsel for SGI, Solil, and “various holding companies and other entities.” Id. at ¶ 24. Plaintiff was supervised by both Goldman and Brener. Id. at ¶ 34.
B. Facts relevant to Plaintiff's Disability Discrimination Claim
Beginning on March 17, 2020, Defendants instructed Plaintiff and other legal staff to work from home because of the COVID-19 pandemic. Pl. 56.1 ¶ 33. Plaintiff worked from his home in New Jersey from that date until June 24, 2020, and represented Defendants in virtual hearings before New York state courts. Id. at ¶¶ 35, 44. As of June 24, there were no in-person court appearances scheduled for cases involving Defendants' properties. Id. at ¶ 45. The parties dispute whether Plaintiff's work during this period was satisfactory. Def. 56.1 ¶¶ 4-5.
In June of 2020, Plaintiff was 69 years old. Pl. 56.1 ¶ 47. He suffers from high blood pressure and coronary artery disease, has a high body mass index, and is considered overweight. Id. at ¶¶ 48-52. As a result of these underlying medical conditions, Plaintiff is at a higher risk for severe COVID-19. Id. at ¶¶ 53-55. Defendants do not dispute that Plaintiff suffers from underlying conditions but do dispute that they were aware of his claimed disability in June 2020. Id. They also contend, based on the deposition testimony of Plaintiff's doctor, Dr. Doron Katz, that Plaintiff's primary underlying condition was age, compounded by weight and hypertension, rather than coronary artery disease. Def. 56.1 ¶ 43; see also ECF No. 105, Ex. D Deposition Testimony of Dr. Doron Katz (“Katz Dep”) 8:12-10:24.
Defendants submitted all exhibits in support of their Motion for Summary Judgment as Exhibit 2, Declaration of Joshua S. Bauchner, of their Memorandum of Law (ECF No. 105). Within Exhibit 2, the individual documents are identified as Exhibits A through Q. All references to Defendants' exhibits A through Q refer to ECF No. 105, Exhibit 2.
Defendants ordered all employees to return to in-person work at their Manhattan offices on June 22, 2020. Pl. 56.1 ¶ 61. On May 28, Plaintiff emailed Dr. Katz:
My employer is going to gradually open probably in @ 2 weeks. I anticipate that I will be expected to return at some point. Sheryl and I have been strongly quarantined. I have rarely left the house. I would greatly appreciate it if you can provide me with a very strong emphatic letter that states that I have been your patient for many years and it [i]s your strong medical opinion that I cannot return to work in an office in New York City or the courts in New York City due to a number of underlying health issues. Either they will terminate my employment and I will file for unemployment or I will retire depending on discussions with them.Def 56.1 ¶ 6. Dr. Katz subsequently provided Plaintiff with the following note:
Jeffrey Goldman has been my patient for 15 years. It is my medical opinion that he has several underlying conditions that would put him at a higher risk to work in an office building or the courts in New York City. He is fully able to continue working from home as he has been during the ongoing COVID19 Pandemic.ECF No. 98, Ex. 6.
On June 17, 2020, Plaintiff emailed Brener, his supervisor, and Concetta Ferrari, the Defendants' office manager:
As you know, I have been working from home since March 17, 2020, and I appreciate having been able to do that. I have a number of underlying health issues. I do not go to stores. I do not go to synagogues. I do not allow either of my daughters to come to my home. I have not seen my daughter, Jordana, in 6 months. She knows that she can't come here, and she is flying from Los Angeles to Baltimore, without stopping here. I have consulted with my physician. He has provided me with a letter. I will not be able to return to court, and I will not be able to return to the office. I can, however, continue working from home.ECF No. 98, Ex. 5. Brener responded: “Jeff: You are our court attorney!!!!! Help!” Id. Later the same day, Brener wrote again asking Plaintiff to submit the doctor's note, which he provided. ECF No. 98, Ex. 15.
On June 24, 2020, Brener gave Defendant Goldman a copy of Plaintiff's email. Pl. 56.1 ¶ 75. Goldman then called Plaintiff on the phone. Id. at ¶ 76. The parties dispute whether Plaintiff resigned or was terminated. Plaintiff testified that Goldman told him to retire. ECF No. 98, Ex. 1 Jeffrey Goldman Deposition (“Pl. Goldman Dep”) 132:1-15. He refused, saying she'd have to fire him, and he would collect unemployment. Id. at 132:15-17. Plaintiff also testified that she said he was furloughed until court re-opened. Id. at 132:8-10. Eventually, she hung up. Id. at 132:25. Defendant Goldman presented her version of the conversation at her deposition:
GOLDMAN: I said, Well, Jeff I guess that means you're retiring. And he said, No, that doesn't mean that. Could you fire me so that I could collect unemployment? . . . And I said, Jeff, I'm going to take this as your retirement, that's not what happened. I said, You have a pension. Why would I fire you? Why would you take unemployment? You're refusing to come to work, and you have a pension. If that's what you're going with, go with your pension and enjoy your retirement.
QUESTION: So just to be clear, did he say the words he was retiring, or did he tell you he wasn't coming to the office?
GOLDMAN: No. What he told me was that I should fire him. He had stated in a previous correspondence with Judy that he was not coming to work, he was not going to court, which was his job. So if he stopped going to court, and he's not coming to work - his job did not entail working from home, and he never stated if, when he would ever return to court, so I assumed he was quitting. He said he wanted to be fired so he could collect Unemployment, pure and simple.ECF No. 98, Ex. 2 Jane Goldman Deposition (“J. Goldman Dep.”) 25:14-26:22. Defendants have no written records of whether Plaintiff's request to work from home was granted or denied. Pl. 56.1 ¶ 90.
It is uncontested that immediately after the call, Defendants cut off Plaintiff's access to the computer network, his work email, and his work computer. Id. at ¶ 92. Defendants also terminated his health insurance benefits. Id. at ¶ 93. They later submitted signed paperwork to the New York Department of Labor regarding Plaintiff's unemployment insurance claims, stating that the reason for his unemployment was that he had “effectively resigned/retired.” Id. at ¶ 97-98.
DISCUSSION
I. Legal Standards
A. Summary Judgment
Plaintiff moves for partial summary judgment on liability only for disability discrimination under the New York City Human Rights Law. Defendant SGI cross-moves for summary judgment on the ground that it was not Plaintiff's employer.
Under Federal Rule of Civil Procedure 56, the Court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of establishing that no genuine issue of material fact exists. Id. at 256-57; see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23).
Then, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). The non-moving party must cite to “particular parts of materials in the record” or demonstrate “that the materials cited [by the movant] do not establish the absence . . . of a genuine dispute” as to a material fact. Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . .”). The non-moving party must produce more than a “scintilla of evidence,” Anderson, 477 U.S. at 252, and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . .” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (“[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” (quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996))).
In ruling on a motion for summary judgment, the Court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). When both sides have moved for summary judgment, the district court is “required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party.” Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011).
B. New York City Human Rights Law
1. Disability Discrimination
The NYCHRL forbids discrimination in the “terms, conditions or privileges of employment” because of an individual's “actual or perceived . . . disability.” N.Y.C. Admin. Code § 8-107(1)(a). The provisions of the NYCHRL must “be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws . . . have been so construed.” Mihalik v. Credit Agricole Cheuvreux N. Am., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Restoration Act §7). As a result, “courts must analyze NYCHRL claims separately and independently from any federal and state law claims . . . construing the NYCHRL's provisions ‘broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'” Id. (quoting Albunio v. City of New York, 16 N.Y.3d 472, 477-78 (2011)).
Disability is defined as “any physical, medical, mental or psychological impairment,” which is in turn defined as “[a]n impairment of any system of the body; including, but not limited to, the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, . . . [and] the cardiovascular system.” N.Y.C. Admin. Code § 8-102. The NYCHRL defines disability more broadly than the ADA and the New York State Human Rights Law. See Giordano v. City of New York, 274 F.3d 740, 753-54 (2d Cir. 2001).
Employers are prohibited from refusing “to provide a reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job.” N.Y.C. Admin. Code § 8-107(15)(a). A “reasonable accommodation” is defined as “such accommodation that can be made that does not cause undue hardship in the conduct of the covered entity's business.” N.Y.C. Admin. Code § 8-102. Employers may assert that the individual “could not, with reasonable accommodation, satisfy the essential requisites of the job” as an affirmative defense. N.Y.C. Admin. Code § 8-107(15)(b). “[T]he NYCHRL presumes all accommodations to be reasonable until proven otherwise,” LeBlanc v. United Parcel Serv., No. 11-cv-6983 (KPF), 2014 WL 1407706 at *18 (S.D.N.Y. Apr. 11, 2014), and so the employer has the burden of proving undue hardship, N.Y.C. Admin. Code § 8-102; see also Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 885 (2013).
Upon receiving an employee's request for an accommodation, the employer is required “to engage in a cooperative dialogue” with the employee, N.Y.C. Admin. Code § 8-107(28)(a)(2), that includes discussion of the employee's “accommodation needs; potential accommodations that may address [his or her] accommodation need . . . and the difficulties that such potential accommodation may pose” for the employer,” Id. at § 8-102. The dialogue “may involve a ‘meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, asking the employee what he or she specifically wants, showing some sign of having considered the employees request, and offering and discussing available alternatives when the request is too burdensome.” Vangas v. Montefiore Med. Cent., 6 F.Supp.3d 400, 420 (S.D.N.Y. 2014) (quoting Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 218-19 (2d Cir. 2001)). “Upon reaching a final determination at the conclusion of a cooperative dialogue . . . the covered entity shall provide any person requesting an accommodation who participated in the cooperative dialogue with a written final determination identifying any accommodation granted or denied.” N.Y.C. Admin. Code § 8-107(28)(d).
The failure to engage in a cooperative dialogue is independently actionable under the NYCHRL. In support of this proposition, courts in this District have cited to cases decided before Jacobsen v. New York City Health & Hospitals Corporation, 22 N.Y.3d 824 (2014). See, e.g, Stuart v. T-Mobile USA, Inc., No. 14-cv-4252 (JMF), 2015 WL 4760184, at *9 (S.D.N.Y. Aug. 12, 2015); Vangas, 6 F.Supp.3d at 420. In Jacobsen, the New York Court of Appeals explicitly rejected this view, holding that “a good faith interactive process” was not “an independent element of the disability discrimination analysis under either the State or City HRL which, if lacking, automatically compels a grant of summary judgment to the employee or a verdict in the employee's favor.” 22 N.Y.3d at 838. In response to Jacobsen, in 2018, the New York City Council amended the NYCHRL to “legislatively modify [its] holding.” Hosking v. Mem'l Sloan-Kettering Cancer Ctr., 186 A.D.3d 58, 64 (1st Dep't 2020) (quoting Report of the Governmental Affairs Division, Committee on Civil Rights, December 18, 2017, p.4). As revised, the NYCHRL provides that “[i]t shall be an unlawful discriminatory practice for an employer, labor organization or employment agency or an employee or agent thereof to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time.” N.Y.C. Admin. Code § 8-107(28)(a). The statute further provides that “[a] covered entity's compliance with this subdivision is not a defense to a claim of not providing a reasonable accommodation.” Id. at § 8-107(28)(f). As such, I conclude that the City Council's amendment of the law was intended to clarify that the refusal to engage in a good faith interactive process is independently actionable under the NYCHRL. See Report of the Governmental Affairs Division at p.4; see also Betances v. MetroPlus Health Plan, Inc., No. 20-cv-2967 (JGK), 2021 WL 2853363, at *8 (S.D.N.Y. July 7, 2021) (denying defendant's motion for judgment on the pleadings where the pleadings did not make any reference to a cooperative dialogue).
The Court of Appeals for the Second Circuit has noted that it “is unclear whether, and to what extent, the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims.” Mihalik, 715 F.3d at 110 n.8. Some courts in this District have applied the McDonnell Douglas analysis to failure-to-accommodate claims. See, e.g., Wells v. Achievement Network, No. 18-cv-6588 (KPF), 2021 WL 810220, at *10- (S.D.N.Y. Mar. 2, 2021). Other courts in this District, however, have declined to do so, explaining that it is “not helpful and could introduce unwarranted intent requirements into the analysis.” Nazario v. Promed Personnel Serv. NY Inc., No. 15-cv-6989 (LGS), 2017 WL 2664202, at *5 n.1, *6 n.3 (S.D.N.Y. Jun. 19, 2017) (citing McMillan v. City of New York, 711 F.3d 120, 129 (2d Cir. 2013) (explaining that McDonnell Douglas analysis need not be used where it is not helpful)). Furthermore, where “a Plaintiff alleges that an employer failed to accommodate a disability, and that the failure to accommodate caused the conduct upon which termination was based, there is no need to determine whether the proffered reason for discharge was pretext.” Piligian v. Icahn Sch. of Med. at Mount Sinai, 490 F.Supp.3d 707, 717 (S.D.N.Y. 2020). Because Plaintiff alleges that Defendants' failure to grant him an accommodation resulted in his termination, I do not apply the McDonnell Douglas burden-shifting analysis to his claims.
2. Definition of Employer
The NYCHRL prohibits “an employer or an employee or agent thereof” from engaging in discriminatory conduct, N.Y.C. Admin. Code §8-107(1)(a), but does not provide a definition of “employer,” see id. §8-102. Courts in this District have applied the “single integrated employer” theory to NYCHRL claims where “two ‘separate corporations [are] under common ownership and management.'” Goldman v. Sol Goldman Inv., LLC, 559 F.Supp.3d 238, 242-43 (S.D.N.Y. 2021) (quoting Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005)) (collecting cases). “Where two entities are deemed part of a single integrated enterprise, then both entities are ‘subject to joint liability for employment-related acts.'” Lima v. Addeco, 634 F.Supp.2d 394, 400 (S.D.N.Y. 2009) (quoting Laurin v. Pokoik, No. 02-cv-1938 (LMM), 2004 WL 513999, at *4 (S.D.N.Y. Mar. 15, 2004)).
To determine whether the entities in question are a single integrated employer, courts consider: “(1) the interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial support.” Goldman, 559 F.Supp.3d at 243 (internal quotation marks omitted). “Although no one factor is determinative . . . control of labor relations is the central concern.” Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996). “[T]he central question is ‘[w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?'” Brown v. Daikin Am. Inc., 756 F.3d 219, 227 (2d Cir. 2014) (quoting Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995)).
SGI contends that common law principles determine who is an employer under the NYCHRL, pointing to the test developed by the New York Court of Appeals in Griffin v. Sirva, Inc.. 29 N.Y.3d 174 (2017). In Griffin, the Court held that common-law principles determine who may be liable as an employer under § 296(15) of the NYSHRL. Id. at 186. The New York Court of Appeals, however, recently declined to apply tests developed in the context of the NYSHRL to determine whether a defendant was liable as an employer under the NYCHRL. See Doe v. Bloomberg, L.P., 36 N.Y.3d 450, 456-59 (2021). Although the dissent cited to Griffin to argue that New York common law principles should be applied to determine defendant's status, id. at 474-75 (Rivera, J., dissenting), the Court rejected this argument, id. at 462. Instead, it resolved the question by looking to the language and structure of the statute without proposing a uniform test for or definition of “employer” under the NYCHRL. Id. at 459-60. Absent further guidance from New York courts, I decline to apply the Griffin test here.
II. Analysis
Plaintiff moves for summary judgment on his disability discrimination claim. The Court construes Plaintiff's papers as raising two separate claims pursuant to the NYCHRL: (1) a claim for failure to accommodate, and (2) a claim for discriminatory discharge.
A. SGI's Status as an Employer
“An essential element of a claim under the . . . NYCHRL is the existence of an ‘employer-employee relationship.'” McHenry v. Fox News Network, LLC, 510 F.Supp.3d 51, (S.D.N.Y. 2020) (quoting Brown, 756 F.3d at 226). Defendants do not contest that Plaintiff was an employee of Solil, or that Goldman may be held directly liable for any discriminatory conduct. See ECF No. 105, Defendants' Memorandum of Law (“Def. Mem.”) 11-14. But they contend that SGI was not Plaintiff's employer because Solil paid his wages and benefits, Solil was reported as his employer on his state and federal tax returns, and SGI has no employees. Id. Plaintiff counters that SGI may be held jointly liable with Solil because they are a single integrated enterprise. ECF No. 96, Plaintiff's Memorandum of Law (“Pl. Mem.”) 21-25.
The uncontested facts indicate that Solil and SGI function as a single integrated enterprise. The two companies shared a common management that controlled the conditions of employment for Plaintiff and other employees. It is uncontested that Defendant Goldman was both a principal of Solil and a manager of SGI. She had the power to hire, fire, set the rate of pay, and set the terms and conditions of employment for Solil employees, and to make management decisions on behalf of SGI. Judith Brener also served as general counsel of both Solil and SGI, and, together, with Goldman, supervised Plaintiff. See St. Jean v. Orient-Express Hotels Inc., 963 F.Supp.2d 301, 308 (S.D.N.Y. 2013) (noting that relevant factors for determining whether a second entity had immediate control over the formal employer's employees include the “commonality of hiring, firing, discipline, pay, insurance, records, and supervision.”); see also Nelson v. Beechwood Org., No. 03-cv-4441 (GEL), 2004 WL 2978278, at *4 (S.D.N.Y. Dec. 21, 2004) (allegation that defendant “supervised and coordinated all functions and all duties performed” by plaintiff and other employees indicated that defendant corporation and formal employer operated as single integrated employer); Gore v. RBA Grp., No. 03-cv-9442 (KMK)(JCF), 2008 WL 857530, at *5 (S.D.N.Y. Mar. 31, 2008) (summary judgment for defendant corporation not appropriate where plaintiff produced evidence that it controlled most aspects of Plaintiff's employment). Significantly, Brener and Goldman were both directly involved in the incident at issue: Plaintiff informed Brener that he could not return to the office because of his underlying health, Brener shared the email with Goldman, and Goldman called Plaintiff in response. See St. Jean, 963 F.Supp.2d at 308 (reasoning that involvement of HR director and vice president of defendant corporation in transaction at issue supported plaintiff's contention that she was jointly employed).
Furthermore, the operation of the two companies was interrelated. Plaintiff represented SGI's properties in proceedings in housing court without a retainer agreement, indicating that Solil, Plaintiff's formal employer, did not operate as a separate entity. Laurin, 2004 WL 513999, at *5 (finding operations interrelated where plaintiff performed work connected to various buildings without regard to which entity acted as the managing agent). Defendant Goldman had the sole authority to settle any case concerning properties owned by SGI. See Brown, 756 F.3d at 227 n.8 (interrelated operations where approval of parent company required for all significant actions of subsidiary or its employees).
“Other factors with relevance to the single-employer inquiry are family connections, as well as use of common office facilities.” Laurin, 2004 WL 513999, at *8 (citing Lihli Fashions Corp., Inc. v. N.L.R.B., 80 F.3d 743, 747 (2d Cir. 1996)). In response to questions about her position at Solil, Goldman testified that she and her family own “hundreds of companies,” and that she has “different titles” for each company. Pl. 56.1 ¶ 17; J. Goldman Dep. at 18:15-20:19. Defendants object to Plaintiff's reference “to the extent that [she] does not own most of the properties directly and the characterization of ‘her family' is undefined,” but do not cite to any evidence in support of their objection. Pl. 56.1 ¶ 17. “Where, as here, the record does not support the assertions in a Local Rule 56.1 statement, those assertions should be disregarded and the record reviewed independently.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001); see also Major League Baseball Prop., Inc. v. Salvino, Inc., 542 F.3d 290, 315 (2d Cir. 2008) (upholding district court's conclusion that defendant did not raise a genuine dispute of material fact in its objections to plaintiff's Rule 56.1 statement). Particularly in light of Defendant Goldman's roles at both Solil and SGI, Defendants have failed to raise a triable issue of material fact that Solil and the properties controlled by SGI are ultimately owned by the Goldman family. In addition, SGI and Solil operated out of the same office, further supporting the conclusion that they operate as a single integrated employer.
Defendants argue that SGI was not Plaintiff's employer because he received his W-2s from Solil, identified Solil as his employer on his state and federal tax returns, and paperwork related to his unemployment claim was directed to Solil. It is uncontested, however, that Solil was Plaintiff's formal employer: the issue is whether SGI may be held jointly liable with Solil. As the Court explained in its denial of Defendants' motion to dismiss, Plaintiff's W-2 statements and tax returns are simply not relevant to the four-factor test for determining whether the two entities are a single integrated enterprise, and as such are not sufficient to raise a triable issue of material fact. Goldman, 559 F.Supp.3d at 244 (“The inquiry therefore turns on the substantive realities of the relationship between Solil, SGI, and Plaintiff, not on formalistic distinctions such as whose name was on Plaintiff's W-2.”)
I conclude that Defendant SGI has failed to meet its burden of establishing that it is not Plaintiff's employer and has not raised a triable issue of material fact in response to Plaintiff's evidence that SGI and Solil operated as a single integrated enterprise. I therefore recommend that the Court deny SGI's cross-motion for summary judgment.
B. Failure to Accommodate
To establish a prima facie claim for failure to accommodate under the NYCHRL, the plaintiff must show that she: (1) is a person with a disability under the meaning of the statute; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations. Sivio v. Vill. Care Max, 436 F.Supp.3d 778, 790 (S.D.N.Y. 2020). The employer, however, has the burden of showing “that the employee could not, with reasonable accommodation, satisfy the essential requisites of the job.” Nazario, 2017 WL 2664202, at *6 (internal quotation marks omitted); see also LeBlanc, 2014 WL 1407706, at *18 (“Because the NYCHRL presumes all accommodations to be reasonable until proven otherwise, Defendant bears the burden of demonstrating, as an affirmative defense, that the requested accommodation was overly burdensome, or that Plaintiff could not perform the essential functions of his job even with a reasonable accommodation.”).
Plaintiff has established a prima facie case of failure to accommodate under the NYCHRL. First, Plaintiff argues that his obesity, hypertension, and coronary artery disease are impairments of the cardiovascular and musculoskeletal systems that qualify as disabilities under the NYCHRL's broad definition. See Naranjo v. Brann, No. 156949/2020, 2021 WL 2014981, at *3 (N.Y. Sup. Ct. May 20, 2011) (reasoning that hypertension could qualify as a disability “under the NYCHRL's lenient definition of that term”). Whether or not obesity, either alone or comorbid with other conditions, qualifies as a disability under the NYCHRL appears to be an unsettled question of state law. See Spiegel v. Schulmann, 604 F.3d 72, 83 (2d Cir. 2010).
Although Defendants quibble with the exact nature of Plaintiff's disability, they do not dispute that he had one within the meaning of the NYCHRL. Given the City Council's directive that the NYCHRL be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible,” I conclude that Plaintiff has established that he is a person with a disability within the meaning of the statute. Albunio, 16 N.Y.3d at 477-78; see also Arazi v. Cohen Brothers Realty Corp., No. 20-cv-8837 (GHW), 2022 WL 912940, at *7 n.5 (S.D.N.Y. Mar. 28, 2022) (citing May 20, 2020 guidance from the New York City Human Rights Commission in support of conclusion that “an individual with an underlying condition that renders them more susceptible to COVID-19 . . . has a disability for which they may seek an accommodation under the NYCHRL.”)
Second, Plaintiff's June 17, 2020, email to Brener and Ferrari, along with the note from Dr. Katz, was sufficient to put Defendants on notice of his disability. Plaintiff's email and Dr. Katz's note clearly communicated that he suffered from underlying conditions putting him at greater risk of contracting severe COVID-19. Romanello, 22 N.Y.3d at 883, 885 (letter from plaintiff's counsel stating that he was “suffering from severe and disabling illnesses” and his date of return to work was “indeterminate” was sufficient to put employer on notice of disability); Coronado v. Weill Cornell Med. Coll., 114 N.Y.S.3d 193, 200 (N.Y. Sup. Ct. 2019) (plaintiff's note from her obstetrician advising that she was pregnant and should avoid specific activities constituted a request for a reasonable accommodation under the NYCHRL). Furthermore, while the note stated that he could not return to the office or to court, both Plaintiff and Dr. Katz asserted that he could continue to work from home. Defendants' claim that this note neither put them on notice of his disability nor constituted a request for a reasonable accommodation is unavailing. “[A] request for accommodation need not take a specific form” and “may be in plain English, not mention the statute, or the term ‘reasonable accommodation.'” Reed v. Nike, Inc., No. 17-cv-7575 (LGS), 2019 WL 2327519, at *3 (S.D.N.Y. May 31, 2019). While Plaintiff's assertion that he could work from home was not phrased as a request or described as a reasonable accommodation, the plain implication of both the email and the note was that Plaintiff sought to continue remote work.
On the third element, Defendant bears the burden of showing “that the employee could not, with reasonable accommodation, satisfy the essential requisites of the job.” Nazario, 2017 WL 2664202, at *6 (internal quotation marks omitted); see also Ramirez v. Temin & Co., Inc., No. 20-cv-6258 (ER), 2021 WL 4392303, at *18 (“Under the NYCHRL, [plaintiff's] requested accommodations are presumed reasonable, and the burden falls on Defendants to demonstrate that granting [plaintiff] these accommodations would cause an undue hardship.”)
Fourth, Plaintiff has established that Defendant not only refused to make reasonable accommodations, but also failed to engage in a cooperative dialogue as required by the NYCHRL. The statute is clear that once the employee requests a reasonable accommodation, the employer must engage in a cooperative dialogue within a reasonable period of time. N.Y.C. Admin. Code §§ 8-102; 8-107(28)(a)(2). While Plaintiff and Defendants offer somewhat different accounts of the phone call, neither Plaintiff nor Defendant Goldman testified that she requested additional information about his conditions and limitations, offered or discussed available alternatives, or even discussed his request for an accommodation at all. See Vangas, 6 F.Supp.3d at 420. Indeed, when asked if she had considered allowing him to work from home as an accommodation, Defendant Goldman stated that working from home was “not an accommodation.” J. Goldman Dep. at 38:15-23. When asked if Plaintiff had said that he would not come to the office, she testified that his job required him to come to the office, and given his prior email, she assumed that he was quitting. But Plaintiff's email clearly stated that he was able to continue working from home: a reasonable employer would not have interpreted his email as a letter of resignation. Hosking, 186 A.D.3d at 65-66 (reasoning that testimony of two supervisors that they would not consider plaintiff's requested accommodation and she could not perform the role with accommodations indicated that defendants had not engaged in the interactive process in good faith); LaCourt v. Shenanigans Knits, Ltd. 38 Misc.3d 1206(A), at *5 (N.Y. Sup. Ct. 2012) (no interactive process where supervisor testified 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,' and that . . . plaintiff no longer had a job”). Defendants were therefore required by the statute to engage in a cooperative dialogue with Plaintiff, which Defendant Goldman failed to do. Defendants also failed to provide a final written determination identifying the accommodation requested and denied as required by the statute. N.Y.C. Admin. Code § 8-107(28)(d).
Defendants' argument that Plaintiff may not recover because he refused to participate in the cooperative dialogue is unavailing. The sole authority cited by Defendants in support of their argument is Strong v. Fernandez, 188 A.D.3d 1590 (4th Dep't 2020), a case in which the Fourth Department reviewed the New York State Division of Human Rights' determination that defendant had failed to establish a prima facie case of discrimination under the State Human Rights Law, not the City Human Rights Law, id. at 1590-91. Strong is distinguishable on both the law and the facts. Not only does the NYSHRL place the burden of proving that the requested accommodation was reasonable on the employee, but also the court's review of the Commissioner's determination is limited to whether it was supported by substantial evidence. Id. at 1592-93. Furthermore, the Commissioner determined that the plaintiff in Strong had failed to respond to Defendant's request for further information about his condition and requested accommodation. Id. at 1592. In contrast, there is no dispute that Plaintiff provided Dr. Katz's note when Brener requested it, and that neither Brener nor Goldman asked him for any additional information. Accordingly, Defendants have failed to raise a triable issue of material fact as to whether they engaged in a cooperative dialogue regarding Plaintiff's requested accommodation.
I conclude that Plaintiff has established a prima facie case of disability discrimination for Defendants' failure to accommodate his disability. Furthermore, Plaintiff has established that Defendants failed to engage in the cooperative dialogue required by the statute. Such a failure is a per se violation of the statute and is independently actionable. See N.Y.C. Admin. Code § 8-107(28)(a); see also Hosking, 186 A.D.3d. at 64-65.
Because Plaintiff has established a prima facie case, the burden then shifts to Defendants to show that Plaintiff's requested accommodation of working from home was an undue hardship. The statute defines “undue hardship” as “an accommodation requiring significant expense or difficulty.” N.Y.C. Admin. Code § 8-107(3)(b). “In determining whether an accommodation constitutes an undue hardship, factors a court may consider include (a) the nature and cost of the accommodation; (b) “the overall financial resources of the facility . . . involved in the provision of the reasonable accommodation; . . . the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility”; (c) the overall financial resources of the employer and (d) “the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity.” Vangas, 6 F.Supp.3d at 417-18 (quoting N.Y.C. Admin. Code § 8-102(18)). Defendants contend that Plaintiff had “demand[ed] to forever work from home and never again go to court in-person or visit the office,” a request that “would have undoubtedly caused an undue hardship for Solil.” Def. Mem. 22. But Plaintiff's email stated only that he would “not be able to return to court . . . [or] return to the office.” He did not clearly state that he never intended to return to the office, and the Defendants did not ask for further clarification on the timeframe for his return. “[A]lthough a jury may ultimately find that [plaintiff] cannot perform the position even with an accommodation, or that to do so would impose an undue hardship, defendant cannot jump to that ultimate conclusion without first engaging in a good faith interactive process with plaintiff.” Hosking, 186 A.D.3d at 67. Moreover, it is undisputed that in June 2020, there were no proceedings scheduled that would have required Plaintiff to appear in court in-person, and Defendants vague statements that it would have been an undue hardship for their “senior courtroom litigator to never set foot in a New York courtroom” is unsupported by any admissible evidence at all, let alone evidence of Defendants' financial resources, the composition, structure, and functions of their workforce, or the effect on their operations. Def. Mem. 22-23.
Defendants' contention that Plaintiff's job performance had declined while working from home is also unpersuasive. The only support for this claim is Brener's statement, made in an affidavit submitted in response to Plaintiff's motion for partial summary judgment, that “Plaintiff's job responsibilities were not fully and effectively performed while he was working from home during the early months of the pandemic” and “it was necessary for Plaintiff . . . to return to the office . . . in order to properly fulfill his job responsibilities.” ECF No. 105, Ex. 3
Declaration of Judith M. Brener (“Brener Decl.”). Defendants do not point to any other evidence that Plaintiff's work was unsatisfactory. Indeed, as Plaintiff points out, Brener previously testified that she wanted him to return to the office so he could mentor other employees and be “a leader” sharing “institutional knowledge.” ECF No. 105, Ex. B Deposition of Judith Brener (“Brener Dep.”) 26:17-19, 27:25-28:5. Brener never testified that Plaintiff's work performance had declined during the spring of 2020. “It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.” Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987); see also Sivio, 436 F.Supp.3d at 793-94 (concluding defendant had not met burden of demonstrating undue hardship where the only cited evidence was testimony of vice president of human resources).
I therefore recommend that the Court grant Plaintiff's motion for summary judgment because Plaintiff has established a prima facie claim for failure to accommodate his disability under the NYCHRL. He has also shown that Defendants failed to engage in the cooperative dialogue required by the NYCHRL. Defendants have not raised a triable issue of material fact as to whether they engaged in a cooperative dialogue in response to Plaintiff's request for a reasonable accommodation or demonstrated that Plaintiff's requested accommodation was an undue hardship.
C. Discriminatory Discharge
An employee “states a prima facie case of discrimination under . . . the . . . City HRL if the employee suffers from a statutorily defined disability and the disability caused the behavior for which the employee was terminated.” Jacobsen, 22 N.Y.3d at 834. When a plaintiff argues that an adverse employment action is tied to an employer's failure to accommodate, he must show that he was entitled to a reasonable accommodation and “the connections between (1) the failure to accommodate a disability, (2) the performance deficiencies, and (3) the adverse employment action.” Natofsky v. City of New York, 921 F.3d 337, 352 (2d. Cir. 2019) (internal quotation marks omitted).
Plaintiff has shown that he was entitled to a reasonable accommodation, and that Defendants' failure to provide his requested accommodation is directly connected to his termination. See Jacobsen., 22 N.Y.3d at 834; see also Wellner v. Montefiore Med. Ctr., No. 17-cv-3479 (KPF), 2019 WL 4081898, at *11 (S.D.N.Y. Aug. 29, 2019) (“It is true that a court can consider a defendant's failure to engage in an interactive process as evidence that the defendant engaged in discrimination or retaliation.”); Piligian, 2020 WL 6561663, at *9 (noting that an employer's “failure to accommodate Plaintiff could itself be evidence of discriminatory intent”). The uncontested facts demonstrate that on June 17, Plaintiff sent an email to Defendants stating that he had underlying conditions and could not return to the office, but that he could continue working from home. He then submitted a doctor's note in support of his request. As soon as Brener shared the email and note with Defendant Goldman, Goldman called Plaintiff. On the call, she refused to discuss Plaintiff's request to work from home, instead asking if he intended to retire. This is precisely the “societal ill which the relevant anti-discrimination statutes were designed to combat.” Jacobsen, 22 N.Y.3d at 843. By denying Plaintiff's requested accommodation, Defendants effectively “force[d] [him] to either quit his . . . job in order to preserve [his] health or else to continue working without adequate protective measures and then succumb to debilitating impairment.” Id. at 843-44; see also Estate of Benitez v. City of New York, 193 A.D.3d 42, 49 (1st Dep't 2021) (same).
Defendants attempt to raise an issue of material fact as to whether Plaintiff was terminated or retired, maintaining that he “effectively resigned/retired” by refusing to return to the office. Even construing the facts in the light most favorable to Defendants, however, the uncontested facts give rise to the inference that Plaintiff was fired. Both Plaintiff and Defendant Goldman testified that Plaintiff denied that he was retiring, and neither claimed that he explicitly stated that he wanted to quit. Furthermore, it is uncontested that immediately after the call, Plaintiff's access to Defendants' computer network, his email, and work computer was suspended, and his health insurance benefits were terminated.
Accordingly, I recommend that the Court on his discriminatory discharge claim on the gro response to his request for a reasonable accomm
CONCLUSION
I recommend that the Court GRANT Plaintiff's motion for partial summary judgment against all Defendants on his disability discrimination claim under the NYCHRL and DENY Defendant SGI's cross-motion for summary judgment.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Mary Kay Vyskocil at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Vyskocil. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).