Summary
holding that a transfer requiring a commute that the defendant is aware plaintiff is physically unable to tolerate can qualify as an adverse employment action where employer is aware of the health risk posed by the commute
Summary of this case from Antonmarchi v. Consolidated Edison Company of New YorkOpinion
No. 02-CV-6536.
March 31, 2005
DECISION AND ORDER
Preliminary Statement
Presently before the Court is defendant's motion for summary judgment to dismiss plaintiff's pro se complaint in its entirety, or in the alternative, for an order precluding plaintiff from producing expert testimony at trial. (Docket #23). In her complaint, plaintiff alleges that defendant violated the Americans with Disabilities Act ("ADA") under 42 U.S.C. §§ 12112- 12117, by transferring her to a position where her disability prevented her from performing the essential functions of the job, and wrongfully terminating her employment. (Docket #1). For the reasons set forth below, defendant's motions are denied.
In accordance with the provisions of 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of this Court for all dispositive matters, including trial. (Docket #15).
Relevant Facts
In 1981, plaintiff (hereinafter plaintiff or Jackson) was hired by the Eastman Kodak Company as a software technician. In 1999, Kodak sold the division where Jackson worked to Heidelberg Digital, LLC (hereinafter defendant or Heidelberg). Heidelberg asked Jackson to stay on in her position as a software technician under the same pay and benefits as she was receiving from Kodak. Jackson agreed to become a Heidelberg employee.By way of background, in 1988, while still employed by Kodak, doctors diagnosed Jackson with a herniated disc and she continually suffered from back problems thereafter. Jackson Dep. Tr. 56:13-17. In 1995, Jackson's doctor and Kodak agreed upon certain work restrictions for her, limiting her lifting to less than 15 — 20 pounds, and instructing her to avoid prolonged or repeated bending from the waist. Jackson Dep. Tr. 55:25; 56:19 — 57:3; See Exhibit attached to Complaint. Jackson continued working at Kodak under these restrictions without incident for the next four years.
After the purchase of Jackson's unit by Heidelberg, Jackson attended an exit interview with Lisa Wainwright, a Kodak Human Resources representative. The interview occurred on April 27, 1999. Jackson contends that during her exit interview she provided Wainwright, who was also being transferred to Heidelberg, a copy of her 1995 work restrictions. Jackson Dep. Tr. 58:5 — 59:5. Jackson believed that this constituted specific notice to Heidelberg of her disability, since Ms. Wainwright was about to become a Heidelberg employee as well. Jackson Dep. Tr. 59:6-12. However, defendant contends that it was not "officially" aware that plaintiff was working under any medical restrictions until May 2001. See Deposition of Walter Kozub attached as Exhibits #6 and #7 to Ryan Affidavit; Kozub Dep. Tr. 32:16-23; 35:7-15. Ms. Wainwright avers that she has "no recollection" of Jackson providing her with the 1995 work prescription in the Spring of 1999, or at any time before May 2001. See Wainwright Affidavit ¶¶ 7-9 (Docket #46).
In any event, in May 1999, Jackson began working for Heidelberg which manufactured industrial sized printers and employed over 800 people. See Defendant's Statement of Material Facts ¶ 4;see Jackson Affidavit, pages 31 and 32. Jackson's job title was Software Test Technician in the Product Testing Quality Assurance Department. Jackson Dep. Tr. 10:22 — 11:2; 12:-4; 26:25 — 27:4. In that capacity, plaintiff was responsible for writing various software test programs. Jackson Dep. Tr. 12:16-17.
The parties agree that from May 1999 until May 2001, plaintiff "was a fully functioning EOS software test technician." See Ryan Affidavit ¶ 9 (Docket #23). According to plaintiff, she was capable of performing all the functions required of that position because it did not involve heavy lifting, stooping, climbing or kneeling. Jackson Dep. Tr. 19:7-12; 19-23; 54:14-20. Although the written job description for that position included such physical requirements, plaintiff denies that they were actually necessary to perform the software tester responsibilities. Jackson Dep. Tr. 19:19-23. However, it is undisputed that plaintiff could not lift large quantities of paper and was exempt from performing this weekly task. Jackson Dep. Tr. 29:22 — 30:7; 67:10-23; Kozub Dep. Tr. 35:19-25; see also Ryan Affidavit ¶ 13.
Sometime during March or April of 2001, Heidelberg determined that it had a "critical need" to do hardware reliability testing and it decided to reassign plaintiff from her position as a software test technician to a hardware test technician, a position that was much more physically demanding. Jackson Dep. Tr. 21:12; 21:17-18; Kozub Dep. Tr. 28:5-15; Jackson Affidavit, page 24. At the time, plaintiff and Lawrence Hoy were the only two EOS software technicians at Heidelberg. Jackson Dep. Tr. 27:19-22. Heidelberg claims that it decided to reassign plaintiff, rather that Mr. Hoy, because she had the skills to perform the hardware testing and Mr. Hoy was capable of performing all of plaintiff's duties. Kozub Dep. Tr. 28:9 — 29:10. Notably, there is nothing in the record to indicate that Mr. Hoy did not have the skills to perform the hardware test position, or that plaintiff could not have taken over all of Mr. Hoy's software duties if he had been reassigned instead.
When plaintiff was advised of the reassignment, she was "shocked" and immediately wrote an email to her supervisors, Walter Kozub and William Bruyer. In her email, Jackson advised Kozub and Bruyer that she could not perform the physically demanding duties her reassignment would involve. Jackson wrote, in relevant part:
Also, as you know, I have been diagnosed with a chronic, progressive, degenerative spinal disease (L3-L5). As my medical work records show and as my physicians (orthopaedist primary and pain management) have stated I can not bend, twist, lift and/or sit and/or stand for prolonged periods of time because of this chronic back problem and the chronic pain it causes.See Email annexed to Complaint (Docket #1). Jackson advised her employer that she could not accept the position because it would force her to violate her medical restrictions, as set forth in her 1995 work prescription. Jackson Dep. Tr. 22:18-25; 24:12-14; 34:11-14.
Heidelberg responded by issuing Jackson a formal reprimand concerning her "negative views about [her] assignment." Jackson was warned that "if any further incidents occur, you will then be placed on final warning which could lead to termination." See Exhibit #13 to Ryan Affidavit. Based on this reprimand, Jackson felt compelled to accept the hardware testing position or lose her employment altogether. Jackson Dep. Tr. 37:6-10; see Jackson Affidavit, page 13.
As a last resort, Jackson met with Ms. Wainwright in May 2001 and explained that she was incapable of performing the hardware test position because of her disability. Jackson Dep. Tr. 37:19-22; 38:17-22. Jackson provided Ms. Wainwright with a copy of her 1995 Kodak prescription, but Ms. Wainwright rejected it because it was a Kodak document and was outdated. Jackson Dep. Tr. 39:11-12; Wainwright Affidavit ¶ 11; Wainwright Dep. Tr. 140:16-18.
On May 8, 2001 plaintiff provided Heidelberg with an updated work prescription from her doctor, which limited her lifting to less than 10 pounds and instructed her to avoid bending or stooping. Jackson Dep. Tr. 40:4-14; Wainwright Dep. Tr. 143:12-21; see Exhibit #17 attached to Ryan Affidavit. Heidelberg contends that after receiving the updated medical restrictions, Ms. Wainwright met with plaintiff's supervisors to discuss accommodating her restrictions, but those accommodations were never implemented because plaintiff "refused to take part in the hardware training" and "never performed the hardware job." Wainwright Dep. Tr. 145:4-8; see also Ryan Affidavit ¶ 29. However, in an April 8, 2002 letter to Heidelberg's long term disability insurance carrier, Ms. Wainwright represented that "Ms. Jackson did indeed receive initial on the job training as a Hardware Technician prior to her last day worked." See April 8, 2002 Letter from Wainwright to Unum Life Insurance Company attached as an Exhibit to the Complaint (Docket #1) (emphasis supplied). In any event, Jackson vehemently denies the allegation that she never performed the hardware job and claims that despite her medical restrictions, she did begin working in the hardware testing position. Jackson Dep. Tr. 41:10; Jackson Affidavit, page 13.
According to Jackson, the physical labor demands required in the hardware tech position exacerbated her back problems. Jackson Dep. Tr. 77:2-3; see Jackson Affidavit, pages 13-14, 24, 36. Specifically, the position required her to repeatedly load large quantities of paper, weighing approximately 30 — 40 pounds, into an industrial sized printer, and required extensive bending, stooping, and lifting. Jackson Dep. Tr. 28:23 — 29:4, 19; 31:20-23; 32:23 — 33:20. On June 20, 2001, plaintiff left her hardware tech position "in tears" because she was "in so much pain" and went to see her doctor. Jackson Dep. Tr. 41:13-17. Plaintiff's physician, Dr. Gilbert Proper, advised her that she needed to be out of work for six weeks. Jackson Dep. Tr. 41:13-20; 42:5-6; 43:3-5.
On September 16, 2001, plaintiff returned to work with restrictions from Dr. Proper that she lift no more than five pounds and perform minimal bending and twisting. Jackson Dep. Tr. 43:19 — 44:8. The next day, Lisa Wainwright had Jackson examined by a doctor at the Occupational Health Connection who issued a two pound lifting restriction and recommended that Jackson perform no bending, stooping, twisting, or reaching overhead and that she perform sit down work only. Jackson Dep. Tr. 45:13-18; 46:11-22; see Exhibit #22 attached to Ryan Affidavit. Heidelberg decided that with these restrictions, plaintiff could not perform the hardware test technician job and she went out of work on short-term disability. Jackson Dep. Tr. 49:8-13; 51:15-21.
On November 30, 2001, when her short-term disability benefits expired, Jackson was fired from her employment with Heidelberg. Jackson Dep. Tr. 55:5-12. Heidelberg states that Jackson was terminated "due to her [in]ability to perform essential functions of her new position as a Hardware Technician and because there were no other job openings for which she was qualified." See April 8, 2002 Letter from Lisa Wainwright attached to Complaint; Wainwright Dep. Tr. 120:14-20; 164:15-19. In her complaint, Jackson contends that her reassignment and ultimate termination were motivated by a discriminatory animus.
Discussion
Summary Judgment Standard: Federal Rule of Civil Procedure 56(c) provides that summary judgment is warranted where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue exists "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). In deciding a motion for summary judgment, all ambiguities and inferences drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). Rule 56(e), however, provides that in order to defeat a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial. Such an issue is not created by a mere allegation in the pleadings, nor by surmise or conjecture on the part of the litigants." United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir. 1982) (per curiam) (internal quotations and citations omitted). "[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam). Finally, pleadings of a pro se plaintiff must be read liberally and should be interpreted "to raise the strongest arguments that they suggest."Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Americans with Disabilities Act: Title I of the ADA prohibits an employer from discriminating against a qualified individual with a disability in the terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). A plaintiff who raises a disability discrimination claim bears the initial burden of establishing a prima facie case. Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998). To prove a prima facie case of discrimination under Title I, a plaintiff must demonstrate that: (1) her employer is subject to the ADA; (2) she has a disability within the meaning of the ADA; (3) she could perform the essential functions of the job with or without reasonable accommodation; and (4) she was terminated or suffered adverse employment actions because of her disability. Id. at 869-70; see also Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001). If a plaintiff is successful in making out a prima facie case, then the burden shifts to defendant, who must proffer evidence of a legitimate, non-discriminatory reason for its action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifts back to plaintiff who must show that the proffered reason was merely a pretext for intentional discrimination. Id. at 804. At the summary judgment stage, plaintiff "need only establish a prima facie case by producing evidence sufficient to support a reasonable inference of discrimination." Kotlowski v. Eastman Kodak Co., 922 F.Supp. 790, 796 (W.D.N.Y. 1996). With these legal principles in mind, the Court turns to the merits of the summary judgment motion filed by defendant.
As set forth above, there is a distinct legal framework used to evaluate summary judgment motions in ADA cases. Here, however, while Heidelberg's motion papers recite the correct legal analysis for evaluating ADA cases, the specific arguments proffered in support of summary judgment are notably narrow. For example, Heidelberg does not dispute that it is an employer subject to the ADA. Nor does Heidelberg, at least for purposes of summary judgment, really dispute that plaintiff's degenerative back problems constitute a disability within the meaning of the ADA. Heidelberg does not challenge the fact that Jackson could perform the essential functions of the software technician job with reasonable accommodation. Finally, Heidelberg does not appear to dispute that plaintiff's reassignment to the hardware technician position constituted an adverse employment action.
Instead, Heidelberg argues that it is entitled to summary judgment on three specific grounds. First, Heidelberg claims that Jackson's transfer to the hardware technician position was for legitimate business reasons and, therefore, she is unable to demonstrate that the transfer occurred because of her disability. Second, Heidelberg claims that once transferred, Jackson never requested an accommodation for her disability. Finally, Heidelberg argues that Jackson could not perform the essential functions of the hardware technician position and the company was not obligated to create a position for her. See Defendant's Memorandum of law (Docket #24) at pp. 8-13. Because each of Heidelberg's arguments implicate disputed issues of material facts, the Court declines to grant summary judgment on the basis of the arguments presented.
1. Jackson's Transfer to the Hardware Technician Position: At the heart of Jackson's disability discrimination claim is her May 2001 involuntary transfer to the hardware technician position. According to Jackson, once the transfer was ordered and she was required to perform the more physically demanding duties of the hardware technician position, she aggravated her back condition and eventually was terminated by Heidelberg because she could not perform the duties of that position.
Heidelberg argues that Jackson is unable to demonstrate that any adverse employment action occurred because of her disability. With respect to Jackson's involuntary transfer to the hardware technician position, I find that plaintiff has raised an inference of discrimination sufficient to meet the causation component of a prima facie case. It must be remembered that at the time of the transfer, Jackson had been a software technician for Kodak and then Heidelberg for almost 20 years. When informed of the transfer, Jackson immediately protested, claiming that her medically documented "degenerative spinal disease" prevented her from performing the physically arduous job functions demanded in the hardware position. Heidelberg insisted on the transfer and threatened to take disciplinary action against her, including possible termination, if she did not accept the reassignment. Thereafter, Heidelberg effectively eliminated Jackson's software job. As defense counsel aptly noted in his brief, at that point Jackson's "choice was simple: either take the hardware test technician position or be terminated." See Defendant's Memorandum of Law (Docket #24) at page 9.
The transfer of an employee to a job the employer knows or should know the employee cannot perform can constitute an adverse employment action under the ADA. See, e.g., DiIenno v. Goodwill Industries, 162 F.3d 235, 236 (3d Cir. 1998) (after years of performing satisfactorily in previous position, plaintiff's reassignment to position that, according to her physician she was unable to perform, constituted adverse employment action in Title VII lawsuit); Merit v. Southeastern Pennsylvania Transit Authority, 315 F. Supp. 2d 689, 706 (E.D.Pa. 2004) (defendant's transfer of plaintiff's job after she advised defendant that she could not physically tolerate the commute constituted adverse employment action), aff'd. 2005 WL 288827 (3d Cir. January 25, 2005); Bearley v. Friendly Ice Cream Corp., 322 F. Supp. 2d 563, 577-78 (M.D.Pa. 2004) (where plaintiff suffered a disability, defendant's decision to reassign her from a bookkeeper position to a food preparation position could constitute adverse employment action). Heidelberg does not seem so much to contest that the transfer of Jackson out of the job she had successfully performed for 20 years was an adverse employment action, as to argue that the company's actions could not constitute discrimination because they were totally and completely unaware of Jackson's disability. Jackson disputes Heidelberg's claim of ignorance regarding her back condition, pointing to a 1995 "Work Prescription" document completed by Kodak which confirmed certain medical restrictions imposed by Kodak and averring that she provided the document to Lisa Wainwright when Heidelberg purchased the printing business from Kodak. While Ms. Wainwright has no present recollection of receiving the document from Ms. Jackson, it is not the role of this Court to resolve material factual disputes on a motion for summary judgment. See Parker v. Columbia Pictures Industries, 204 F.3d 326, 335 (2d Cir. 2000) (genuine factual dispute in ADA case will preclude summary judgment). Moreover, Jackson testified at her deposition about various "concessions" made by Heidelberg in order to accommodate her lifting and bending restrictions during the time she was employed as a software technician with Heidelberg. Thus, there is evidence in the record from which a reasonable jury could find that Heidelberg was aware of Jackson's disability before the transfer decision was made and indeed, had made efforts to accommodate her condition. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir. 2001) (although there was "some debate" regarding whether defendant received notice of plaintiff's disability, for purposes of summary judgment, court found that there was enough evidence that jury could conclude defendant had notice).
Title VII claims and ADA claims are evaluated under the same analytical framework. Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999).
An ADA plaintiff may also establish an inference of discrimination by evidence that she was replaced by or treated less favorably than a similarly situated employee who was not disabled. Bater v. Kraft Foods, Inc., 2005 WL 602383, *7 (W.D.N.Y. March 14, 2005) ("[t]o establish that the adverse employment action occurred under circumstances giving rise to an inference of discrimination, a plaintiff may demonstrate that `similarly situated' employees who do not share the plaintiff's protected characteristics were treated preferentially"), citing Shumway v. United Parcel Service, 118 F.3d 60, 63 (2d Cir. 1997) (last element of prima facie case may be proven by showing that similarly situated employees were treated differently). Here, plaintiff has pointed to evidence in the record suggesting that she was treated less favorably and ultimately replaced by the other EOS software technician, Lawrence Hoy. Both Heidelberg and Jackson appear to agree that the only two candidates seriously considered for transfer from the software job to the more physically demanding hardware job were Hoy and plaintiff. Jackson avers that Hoy had less experience in the software job, less education and training in the software area, and, most significantly, did not suffer from a disability that would make the demands of the hardware position difficult or impossible to perform. See Jackson Affidavit (Docket #42) at pages 5-7. Viewing the facts in the light most favorable to plaintiff, as I must in this context, such evidence if believed by a jury could suggest that plaintiff was being treated differently than a similarly situated non-disabled co-worker. See, e.g., Branson v. Ethan Allen, Inc., 2004 WL 2468610, *7 (E.D.N.Y. November 3, 2004) (summary judgment denied where disabled plaintiff provided evidence that warnings issued by defendant were not issued to similarly situated non-disabled employees); Smith v. Horton Industries, Inc., 17 F. Supp. 2d 1094, 1099 (D.S.D. 1998) (disabled plaintiff established prima facie case of discrimination where he was involuntarily transferred and paid less than non-disabled employees performing the same work); cf. Ferraro v. Kellwood Co., 2004 WL 2646619, *8 (S.D.N.Y. November 18, 2004) (comparison of disabled and non-disabled similarly situated employees revealed that disabled employees were treated more favorably, therefore, no inference of discrimination).
"[I]t is well-established that the threshold of proof necessary to establish a prima facie case is minimal." Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998);Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001) (plaintiff's burden of establishing prima facie case is de minimis). Indeed, to meet her burden plaintiff need only show that she "suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises." Young, 152 F.3d at 1021-22 (emphasis added). Based on the foregoing, I find that Jackson has met her minimal burden and has established a prima facie case of discrimination.
To the extent Heidelberg is arguing that Jackson failed to demonstrate a prima facie case as to the adverse employment action of termination after the involuntary transfer, such an argument is without merit. Heidelberg concedes that plaintiff was terminated because her disability prevented her from performing the requirements of the hardware technician position. As to this employment decision plaintiff has established all the necessary elements of a prima facie case, including causation. See, e.g., Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997) (when an employer concededly discharges an employee because of a disability, the employee "need prove nothing more" to meet the final prong of the prima facie test); Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3d Cir. 1998) (where it was undisputed that plaintiff, a registered nurse, was terminated following a work-related injury that affected her ability to do heavy lifting, she automatically demonstrated the final element of her prima facie case); Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001) (plaintiff's involuntary retirement based on disability satisfied final prong of test).
A prima facie case having been established, the burden shifts to Heidelberg to set forth legitimate non-discriminatory reasons for its decision to reassign plaintiff. In support of its decision, Heidelberg states that it had a "critical need" for hardware technicians and based on her skills, plaintiff was the "best candidate." Kozub Dep. Tr. 29:7-10. Based on the record before me, I find there to be a question of fact as to whether these reasons constitute a pretext for discrimination. Torre v. Casio, Inc., 42 F.3d 825, 832 (3d Cir. 1994) (defendant's justification for termination in light of evidence presented by plaintiff created issue of fact and required denial of summary judgment). Specifically, plaintiff has set forth facts to support her claim that aside from her disability, she and Lawrence Hoy were similarly situated as EOS software testers. Notably, defendant does not allege that Mr. Hoy was unskilled to perform the hardware test position or that plaintiff could not have performed Mr. Hoy's software responsibilities. Therefore, the fact that defendant deemed plaintiff to be the "best candidate" when she, unlike Mr. Hoy, was physically incapable of performing the hardware tech position, raises the inference of a discriminatory animus and creates a question of fact as to the issue of pretext so as to require the denial of summary judgment. See Branson, 2004 WL 2468610 at *6-7 (defendant claimed plaintiff's termination was based on job performance and insubordination, but plaintiff's comparison of her treatment with similarly situated employees raised question of fact whether true reason may have been her disability, thereby precluding summary judgment); DiIenno, 162 F.3d at 236-37 (although defendant argued that plaintiff's involuntary transfer occurred because it was "a more efficient use of personnel," Court found the disputed credibility of proffered explanation to be an issue of fact for jury to decide);Smith, 17 F. Supp. 2d at 1099-1100 (in response to defendant's claim that non-disabled employees were treated more favorably based on their advanced experience, disabled plaintiff provided proof that they performed the same work and were similarly situated thereby creating an issue of fact as to pretext).Compare with Baptiste v. New York City Transit Authority, 2004 WL 626198, *5 (S.D.N.Y. March 29, 2004) (no inference of discrimination where disabled plaintiff was temporarily assigned to motor repair work because as the only worker available who was qualified, he was the "obvious choice"). Based on the foregoing, the record does support Jackson's burden of showing that there are issues of fact as to whether defendant's proffered reason was a pretext for otherwise unlawful discrimination.
In its memorandum of law, defendant asserts that "[p]laintiff could not take over all of Lawrence Hoy's duties" (see Memorandum of Law, page 9). The assertion is not accompanied by any citation to the record and the Court could not find any support in its review of the record. The Court may not rely on counsel's assertion made in a memorandum of law as the basis for making such a finding. Boscov's Department Stores, LLC v. AKS Intern, AA Corp., 2004 WL 205825, *3 (S.D.N.Y. Feb. 4, 2004).
2. Jackson's Failure to Request Accommodation in the Hardware Position: Heidelberg's second argument is that "once plaintiff started the position as hardware test technician, she never requested any accommodation of her supervisors before she went out of work." See Memorandum of Law, page 11. This argument misconstrues Jackson's claims. The disability discrimination upon which Jackson bases her claims is her involuntary transfer to the hardware position and the damages she alleges flowed from that adverse employment action, including ultimate termination. Moreover, the record reflects that plaintiff did send an email to her supervisors immediately following her notification of the transfer, reminding her supervisors of her disability and, in essence, requesting an accommodation because she believed her medical condition prevented her from performing the new job. In response, defendant formally reprimanded plaintiff and warned her that any further such requests could result in her termination. At the very least, it is for the jury to decide whether it is proper for Heidelberg to fault plaintiff for her alleged failure to request accommodations in the hardware position in light of the fact that Jackson: (1) notified her supervisors that her medical limitations would prevent her from meeting the job's requirements; (2) was thereafter reprimanded for her "negative views" about the transfer; and (3) was given the choice of either taking the hardware position or be fired. On this record, the issue of whether any reasonable accommodations were requested creates a question of fact rendering it inappropriate for summary judgment.See Rodal v. Anesthesia Group of Onondaga P.C., 369 F.3d 113, 120 (2d Cir. 2004) (summary judgment inappropriate where there was question of fact as to whether plaintiff had requested reasonable accommodation).
3. Jackson's Failure to Perform the Essential Functions of the Hardware Position: Heidelberg's third argument is that because plaintiff could not perform the essential functions of the hardware technician position, her termination could not constitute a violation of the ADA. Again, this argument erroneously focuses on events which transpired after the adverse employment action at issue here. In fact, plaintiff does not really dispute that she could not perform the essential functions of the hardware technician position. The point is, however, that plaintiff claims she was capable of performing the essential functions of the software technician position with the reasonable accommodations already provided by Heidelberg and that the decision to transfer her to a job her employer knew she could not physically perform constituted disability discrimination. That the proof may show she could not perform her new job is simply not a basis to grant summary judgment to the employer.
Defendant's Motion to Preclude Expert Testimony: Heidelberg claims that because plaintiff's former counsel provided belated expert discovery, she should be precluded from presenting an expert witness at trial. This Court is well aware of the problems plaintiff had with her previous counsel. My decision to allow counsel to withdraw was based, in part, on previous counsel's questionable conduct. To punish pro se plaintiff for any neglect by her prior counsel in failing to serve timely expert discovery does not seem fair, particularly where there is an absence of prejudice alleged by defendant. Given the complexity of the legal and factual issues in this case, the Court will attempt to find counsel to represent plaintiff at trial. If counsel can be found, the Court will promptly schedule a status conference at which time issues regarding expert disclosure can be addressed.
Conclusion
Defendant's motions for summary judgment and to preclude plaintiff's expert are hereby denied.
SO ORDERED.