Summary
noting that courts have consistently “upheld difference in appearance standards for men and women because ‘[i]t would be absurd to requirement women and men to meet the same ... standards.’ ” (quoting Marks v. Nat'l Comm. Assoc., Inc., 72 F.Supp.2d 322, 330 n. 8 (S.D.N.Y.1999))
Summary of this case from Viscecchia v. Alrose Allegria LLCOpinion
00 Civ. 7201 (JGK)
September 30, 2002
OPINION AND ORDER
Plaintiff Diana Romanello ("Romanello"), brings this diversity action against her former employer, Beaute Prestige International ("BPI") and its parent company, Shiseido Cosmetics America Ltd. ("Shiseido"). The plaintiff alleges that the defendants discriminated against her on the basis of her gender in violation of the New York Human Rights Law, N.Y. Executive Law § 296 ("NYHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107, 8-502 ("NYCHRL"). The plaintiff further alleges that the defendants failed to accommodate reasonably the plaintiff's disability in violation of the NYHRL, N.Y. Exec. Law § 296, and the NYCHRL, N.Y.C. Admin. Code §§ 8-107, 8-502. The defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all claims. The plaintiff has filed a cross motion for summary judgment on her claim for failure to accommodate.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citingUnited States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
II.
The following facts are undisputed or are matters of public record. The defendant Shiseido, a cosmetic company, is a New York corporation with its principal place of business in New Jersey (Affidavit of Mercedes Colwin dated September 6, 2002 ("Colwin Aff.") ¶ 2; Am. Compl. ¶ 2.) BPI is a division of Shiseido. (Colwin Aff. ¶ 2.) BPI sells and distributes several brands of perfume. (Defs.' Rule 56.1 St. ¶ 2; Pl.'s Resp. Rule 56.1 St. ¶ 2.)
Maggie Ciafardini, General Manager of BPI (Defs.' Rule 56.1 St. ¶ 5; Pl.'s Resp. Rule 56.1 St. ¶ 5), and Elizabeth Carr, Field Sales Director for the Eastern Region at BPI (Defs.' Rule 56.1 St. ¶ 4; Pl.'s Resp. Rule 56.1 St. ¶ 4), hired the plaintiff, a citizen of Pennsylvania (Am. Compl. ¶ 1), as Business Development Manager of the Northeast Region. (Deposition of Margaret Ciafardini dated August 21, 2001 ("Ciafardini Dep.") at 45 attached as Ex. Y to Affidavit of Hetal Desai Hodges ("Hodges Aff.") dated December 13, 2001; Deposition of Elizabeth Carr dated August 22, 2001 ("Carr Dep.") at 41, 52-53 attached as Ex. X to Hodges Aff.) The plaintiff joined BPI on January 31, 2000. (Deposition of Diana Romanello dated August 1, 2001 ("Romanello Dep.") at 35 attached as Ex. FF to Colwin Aff.) The plaintiff's responsibilities included sales forecasting, account management, inventory maintenance, marketing, supervision and motivation of other BPI employees, and executing marketing and special events strategies, among other duties. (Carr Dep. 41-45.
Within roughly two weeks of her start date, Romanello alleges that both Carr and Ciafardini confronted her about her personal appearance, particularly with regard to her lips. (Romanello Dep. 91, 98-100.) The specific content of these conversations is disputed. Romanello contends that Carr told her on February 10, 2000 that her "mouth was too big. [Her] lips were too big and that they were not feminine, and they didn't represent BPI." (Romanello Dep. 91.) The plaintiff also alleges that in a subsequent conversation on February 15, 2000 Ciafardini stated that the plaintiff's lips were "too big" and "not feminine," and that she should get them surgically altered. (Romanello Dep. 100-02.) The defendants maintain that Carr addressed Romanello's lip makeup application techniques, rather than the size of her lips. (Carr Dep. 56, 66-67.) Specifically, Carr took issue with the way in which the plaintiff "wore very dark lip liner, with a dark lipstick . . . [which] exaggerated [the] appearance of her lips" (Carr Dep. 57) because such application was not appropriate for the BPI environment where the company required females to wear "discreet and subtle makeup." (Ciafardini Dep. 70.) The defendants acknowledge that the plaintiff and Ciafardini discussed the appearance of the plaintiff's lips. (Ciafardini Dep. 63.) However, Ciafardini claims that the conversation occurred only after the plaintiff herself raised the subject. (Id.) Furthermore, Ciafardini alleges that Romanello confessed to her that she had always been self conscious about the small size of her lips and that was why she tried to make them look bigger with makeup. (Id.) In response, Ciafardini offered Romanello the name of a dermatologist who she thought might be able to help Romanello by making her lips appear fuller. (Ciafardini Dep. 64-65.) The plaintiff does not claim that she heard about the issue of her lips again from Carr or Ciafardini after February 15, 2000. (Defs.' Rule 56.1 St. ¶ 20; Pl.'s Resp. Rule 56.1 St. ¶ 20.)
On July 12, 2000 Carr and Romanello discussed the alleged performance issues that the plaintiff was having. (Romanello Dep. 110-14.) While Romanello admits to having some difficulties at work (Romanello Dep. 143-144), she claims they resulted from a lack of training by the defendant. (Romanello Dep. 110-11, 143-44.) As a result of this meeting, Carr drafted a list of job-related problems for Romanello to improve upon. (Letter from Carr to Romanello dated July 17, 2000 ("Carr letter") attached as Ex. G to Hodges Aff.) She then turned this list over to the plaintiff at a second meeting on July 25, 2002. (Romanello Dep. 115; Carr Dep. 106.) Carr gave Romanello four weeks to improve her performance, after which, on August 22, 2000, the two would again meet to discuss Romanello's progress. (Carr letter.)
The parties disagree over when Romanello's relationship with BPI actually ended. The plaintiff alleges that she was terminated at this July 25, 2000 meeting, effective August 22, 2000 (Romanello Dep. 171, 225.) However, the plaintiff claims, this final termination date was pushed back to August 30, 2000 after the plaintiff became ill. (Pl.'s Resp. Rule 56.1 St. ¶ 7.) The defendants deny this assertion and instead allege that the plaintiff's position was eliminated only after she abandoned her job by failing to return to work after a two month leave of absence. On its face, the Carr letter undermines the plaintiff's contention that she was fired in July. The letter states, "We should meet on August 22nd and discuss the progress you are making in the above areas and decide the next course of action that should be taken. I believe that you are capable of reaching the standards of excellence that our company requires." The defendant's contention is also consistent with the reinstatement policy outlined in the company's 1994 Employee Policy Manual which reads, in part, "If you fail to return to work after an approved medical leave and are not authorized to take any additional leave time, then your position at the Company will be considered abandoned. This will be treated as a voluntary termination of employment on your part." (Shiseido Employee Policy Manual attached as Ex. J to Hodges Aff.) The plaintiff acknowledged receipt of the policy manual in a signed memorandum dated January 1, 2000. (Acknowledgment of Receipt of the Shiseido Cosmetics (America) Ltd. Policy Manual attached as Ex. Q to Hodges Aff.) In any event, the defendants do not dispute the plaintiff's claim that she believed she had been terminated at the July 25, 2000 meeting. (Defs.' Mem. Supp. Summ. J. at 4 n. 3.)
On August 1, 2000, during her alleged Probationary period, Romanello requested three weeks of vacation. (E-mail from Romanello to Carr dated August 1, 2000 attached as Ex. H to Declaration of William H. Kaiser dated January 11, 2002 ("Jan. Kaiser Decl."); E-mail from Carr to Romanello dated August 1, 2000 ("Carr E-mail") attached as Ex. H to Hodges Aff.) Carr denied the request because the vacation coincided with the period during which Romanello was supposed to improve her job performance and various issues and projects remained outstanding. (Carr E-mail.)
On or about August 11, 2000, Romanello suffered a seizure. (Pl.'s Rule 56.1 St. ¶ 2; Defs.' Resp. Rule 56.1 St. ¶ 2.) Subsequent hospitalization resulted in a medical diagnosis of Vasovagal Syncope. (Medical Records of Diana Romanello attached as Ex. F to Declaration of William H. Kaiser dated December 14, 2001 ("Dec. Kaiser Decl.").) On August 16, 2000 the plaintiff's doctor prescribed ten days of bed rest, for which Romanello requested a medical leave of absence. (Doctor's Prescription dated August 16, 2000 attached as Ex. K to Hodges Aff.) The defendants granted this request. (Defs.' Rule 56.1 St. ¶ 38; Pl.'s Resp. Rule 56.1 St. ¶ 38.),
Although Romanello was supposed to return to work on August 25, 2000, she did not. (E-mail from Carr to Romanello dated August 25, 2000 attached as Ex. L to Hodges Aff.; Letter from Ciafardini to Romanello dated August 28, 2000 ("Aug. 28 Ciafardini Let.") attached as Lx. N to Hodges Aff.) Instead, on August 27, 2000, Romanello requested an additional week of medical leave and the defendants again complied. (Defs.' Rule 56.1 St. ¶¶ 40, 41; P1.'s Resp. Rule 56.1 St. ¶¶ 40, 41.) Finally, on August 28, 2000 Romanello asked for two more months of medical leave. (Defs.' Rule 56.1 St. ¶ 42; P1.'s Resp. Rule 56.1 St. ¶ 42.) The defendants granted her leave, informing the plaintiff by letter that they would "place [Ms. Romanello] on a leave of absence until [she would be] able to return to work," and that "[d]ue to business needs the company [would] be required to fill [her] position." (Letter from Ciafardini to Romanello dated August 30, 2000 ("Aug. 30 Ciafardini Let.") attached as Ex. T to Hodges Aff.) The letter went on to request that Romanello contact the defendants when she would be able to return to work and they would "consider [her] for any available positions for which [she was] qualified." (Id.) The defendants ultimately hired Magdalena Maniscalco to fill Romanello's position as Business Development Manager. (Offer Letter from Carr to Magdalena Maniscalco dated September 22, 2000 attached as Ex. CC to Supplemental Affidavit of Hetal Desal H dated January 3, 2002.)
The plaintiff contends that Ciafardini's August 30, 2000 letter constituted a termination rather than an accommodation. (Pl.'s Rule 56.1 St. ¶ 6.) And in the Course of her final negotiations over the two month leave, Romanello wrote to Ciafardini, "Please be advised that your letter [of August 28, 2000] has been sent to my attorney." (Letter from Romanello to Ciafardini dated August 28, 2000 attached as Ex. P to Hodges Aff.) However, the August 30th letter included no statements indicating that Romanello was in fact terminated, rather than merely being placed on leave. (See Aug. 30 Ciafardini Let.) In a follow up letter dated September 8, 2000, Shiseido Senior Human Resources Manager Barbara Aubin outlined the status of Romanello's benefits as of that date. (Letter from Aubin to Romanello dated September 8, 2000 ("Aubin Letter") attached as Ex. G to Jan. Kaiser Decl.) Under Shiseido policy, Romanello would exhaust her paid leave and begin a personal leave of absence on September 15, 2000. (Id.) The company would continue to pay her benefits through the end of September, at which time her reduction in hours would terminate her medical coverage, constituting a "qualifying COBRA event" and allowing her to apply for COBRA. (Id.) The defendants did, in fact, continue to pay these benefits. (Defs.' Rule 56.1 St. ¶ 8; Pl.'s Resp. Rule 56.1 St. ¶ 8.) on September 20, 2000, Romanello signed papers Concerning her COBRA eligibility rights. (Notice of Right to Continuation of Group Health Coverage/Continuation of Health Coverage Election Form dated September 20, 2000 attached as Ex. G to Jan. Kaiser Decl.) On the first page of the form appears a list of options as to why company benefits had ended. Option one states "Termination of employment or reduction in hours." The term "reduction in hours" is circled, presumably electing this answer over "termination of employment." Romanello signed the forms on September 20, 2000.
Although Romanello acknowledges signing the form and filling in her Social Security number on the second page, she asserts that the first page was already filled out when she received it from Barbara Aubin. (Romanello Dep. 338.)
Romanello received her last paycheck from BPI on September 8, 2000. (Notice and Proof of Claim for Disability Benefits attached as Ex. EE to Colwin Aff.) Romanello signed her claim for disability benefits on September 7, 2000. She indicated that she received sick pay, vacation and personal pay for the period August 14, 2000 to September 8, 2000. (Id.) Romanello never contacted anyone at Shiseido or BPI about returning to work at any time (Defs.' Rule 56.1 St. ¶ 45; Pl.'s Resp. Rule 56.1 St. ¶ 45), despite Ciafardini's request that she do so. (Aug. 30 Ciafardini Let.)
III.
The defendants move for summary judgment dismissing the plaintiff's claim that she was discriminated against by the defendants because of her gender in violation of the NYHRL and the NYCHRL. The New York Human Rights Law makes it unlawful for an employer "to discharge from employment [any] individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment," because of the individual's "age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status." N.Y. Exec. Law § 296(1). The relevant prohibitions in the NYCHRL are similar. See N.Y.C. Admin. Code § 8-107(a).
In the absence of direct proof of discrimination, motions for summary judgment under the NYHRL and NYCHRL are analyzed under the burden-shifting framework established in McDonnell Doucilas Corp. v. Green, 411 U.S. 792 (1973) Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). See also Mohamed v. Marriott Int'l, Inc., 905 F. Supp. 141, 156, 157 (S.D.N.Y. 1995) (stating that the same quantum of proof and form of analysis is applied for discrimination claims under the Americans with Disabilities Act, the NYHRL, and the NYCHRL) Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of employment discrimination. This burden is de minimis. Chambers, 43 F.3d at 37. To do so, the plaintiff must show that (1) she is a, member of a protected class; (2) she was qualified for her position; (3) she was terminated or subject to some other adverse employment action; and (4) this adverse employment decision occurred under circumstances giving rise to an inference of discrimination. Weinstock, 224 F.3d at 42; Mohamed, 905 F. Supp. at 154.
If the plaintiff meets her initial burden, the burden then shifts to the defendants to put forth a legitimate, nondiscriminatory reason for their adverse employment action at issue. Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 142 (2000); Weinstock, 224 F.3d at 42. If the defendants meet this burden, the presumption of discrimination arising from the plaintiff's prima facie case drops out and the plaintiff has the opportunity to show that the employer's proffered reason was not the true reason for the challenged decision. The sole remaining issue is whether the plaintiff has produced sufficient evidence from which a reasonable juror could conclude that discriminatory animus was a motivating factor in the challenged decision. Weinstock, 224 F.3d at 42; Zimmerman Assocs. v. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001). To determine whether the plaintiff successfully challenged the defendants' explanation, the Court will look at "the strength of the plaintiff's prima fade case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case. . ." Id. (quoting Sanderson Plumbing, 530 U.S. at 148-49); accord Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Dooner v. Keefe, Bruyette Woods, Inc., 157 F. Supp.2d 265, 282-83 (S.D.N.Y. 2001); Alleyne v. Four Seasons Hotel, No. 99 Civ. 3432, 2001 WL 135770, at *10 (S.D.N.Y. Feb. 15, 2001), aff'd, 25 Fed Appx. 74, 2002 VJL 109353 (2d Cir. Jan. 23, 2002).
The plaintiff has failed to establish a prima fade case of discrimination because she has not shown that any reasonable person could find that she left BED under circumstances giving rise to an inference of discrimination. Romanello alleges that the defendants harassed her and ultimately terminated her employment because the appearance of her lips did not "comport with the Company's view of how a woman should look." (Am. Compl. ¶ 18) She avers that such a policy Constitutes gender-based stereotyping that subjects her to a physical appearance requirement that was not imposed on the defendants' male employees. However, the plaintiff offers no evidence to support such a claim.
First, the plaintiff claims that Carr and Ciafardirni spearheaded a campaign against her. However, Romanello offers no explanation as to why these women considered her appearance and gender acceptable at the hiring stage but unacceptable shortly thereafter. Furthermore, the plaintiff admits that Carr and Ciafardini never mentioned the appearance of her lips to the plaintiff again after February 15, 2000. Instead, over five months passed before Romanello alleges that she was terminated during which time the plaintiff admits to tension between herself and her supervisors over her job performance. This is a case in which the two women who hired the plaintiff were also allegedly responsible for terminating her and the plaintiff was replaced by another woman. The plaintiff has not offered evidence of any causal link between her appearance or gender and any alleged adverse employment actions. She has failed to present a factual basis for inferring discrimination.
Had the plaintiff done so, the burden of production would then shift to the defendants to put forth a nondiscriminatory reason for their actions. Although the defendants show ample documentation of Romanello's shortcomings at work, they do not allege that performance issues played any role in Romanello's departure from BPI. Instead, having granted Romanello her two month leave, the defendants allege that the upcoming Christmas season required the company to hire a replacement for the Business Development Manager position. (Ciafardini Dep. 112-14.) For a period, Carr tried to cover Romanello's job responsibilities in addition to her own, but this arrangement proved untenable as the holidays approached. (Id.) In her August 30, 2000 letter to Romanello, Ciafardini informed the plaintiff that her position would be filled during her absence. The plaintiff did not respond and did not seek to contact the company for any other positions although she had been requested to do so. Eventually, the defendants hired Magdalena Maniscalco to fill Romanello's job. As a result of the plaintiff's failure to recontact the defendants, the defendants ultimately considered Romanello's job abandoned. The defendants have thus produced a nondiscriminatory reason for the employment decision at issue in this case.
As the final step under McDonnell Douglas, the plaintiff may prove that the explanation offered by the defendants is not the true reason for the adverse employment action. It is the plaintiff's burden to produce sufficient evidence from which a reasonable jury could conclude in this case that gender discrimination was a motivating factor in the defendants' decision. In this case, the plaintiff attempts to argue that she was discriminated against because of her gender, and more particularly that the decisionmakers had a gender stereotype with respect to women that was used to discriminate against her because she was a woman. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). However, no reasonable jury could find that the plaintiff was discriminated against because of her gender. First, the same two women, Carr and Ciafardini, who hired the plaintiff were also in charge of her release from BPI. The plaintiff offers no explanation as to why the defendants would have turned on her as a result of her gender, or even her appearance, in the one month after the same two women hired her. Second, she was replaced by another person of the same gender. Third, the plaintiff admits that after February 15, 2000 the defendants made no further comments about her makeup application. The plaintiff has failed to offer any evidence that she was discriminated against because of her gender.
While the plaintiff's papers could be read as asserting a claim that she was discriminated against on the basis of "gender plus," at argument the plaintiff's counsel disclaimed such a theory and argued that the discrimination in this case was because of gender, a claim rejected above. (Tr. at 23.) In any event, the plaintiff has failed to produce evidence of a viable claim of "gender plus" discrimination. "Gender plus" claims may be sustained when a plaintiff demonstrates that he or she was discriminated against on the basis of gender plus an additional characteristic that the employer treats differently with regard to male and female employees. But "[t]o be actionable, gender plus discrimination must be premised on gender." Marks v. Nat'l Comm. Assoc., Inc., 72 F. Supp.2d 322, 335-36 (S.D.N.Y. 1999) (quoting Coleman v. B-G Maintenance Mgmt., 108 F.3d 1199, 1203 (10th Cir. 1997)). To the extent that the plaintiff offered any such claims, they could not survive.
Romanello alleges that the defendants demanded that she "adopt a facial appearance not required of its male employees." (Pl.'s Opp. to Defs.' Mot. for Summ. J. at 25.) However, the courts have upheld differences in appearance standards for men and women because "[i]t would be absurd to require women and men to meet the same . . . standards." Marks, 72 F. Supp.2d at 330 n. 8 (discussing variations in weight requirements for men and women based on the fact that, on average, men weigh more than women). See also Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2d Cir. 1996) (per curiam) (holding that a company policy requiring male employees to have short hair that did not apply to female employees did not violate Title VII of the Civil Rights Act of 1964). The defendants allege that BPI maintains grooming standards for all of its employees — both male and female. For example, female employees must wear discrete and subtle makeup at work, while male employees may not have long hair, earrings or beards. (Ciafardini Dep. 70, 73.) These grooming standards coincide with BPI's conception of itself as a "conservative, French, discreet company." (Id. at 70.) Besides alleging that a difference exists, which is not prohibited, Romanello has pointed to no evidence in the record that supports her allegation that the defendants' grooming standards were applied in a discriminatory manner.
In sum, the defendants are entitled to summary judgment on the plaintiff's gender discrimination claims because the plaintiff has failed to proffer evidence from which a reasonable jury could conclude that the defendants fired the plaintiff based on discriminatory beauty standards.See, e.g., Weinstock, 224 F.3d at 49-50 (dismissing a Title VII claim when no reasonable jury could find on the evidence that the plaintiff's tenure denial was motivated by discrimination)
IV.
The defendants have moved for summary judgment dismissing the plaintiff's claim that the defendants failed to accommodate her disability, and the plaintiff has also moved for summary judgment on this claim. Both the NYHRL and the NYCHRL make it unlawful for any employer to fail to provide reasonable accommodations to known disabilities of their employees. N.Y. Exec. Law § 296(3)(a); N.Y.C. Admin. Code 8-107 (15) (a). This rule is subject to the exception that employers are not forced to provide accommodations that would subject the employer to undue hardship. See N.Y. Exec. Law § 296(3)(b); N.Y.C. Admin. Code § 8-102 (18). In order to set out a prima facie case of failure to accommodate under the NYHRL or NYCHRL the plaintiff must show that 1) she has a disability as defined by the statutes, 2) her employers had notice of the disability, 3) with reasonable accommodation she could perform the essential functions of her job, and 4) the defendants refused to make reasonable accommodations for her needs. Mitchell v, Washingtonville Central School Distr., 190 F.3d 1, 6 (2d Cir. 1999). Although Mitchell articulated this test in a suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the same standards used to evaluate claims under the ADA also apply to cases involving the NYHRL and NYCHRL. Mohamed, 905 F. Supp. at 157.
The exception to this rule is that the state and local statutes use a broader definition of "disability" than does the ADA. Anvan v. New York Life Ins. Co., 192 F. Supp.2d 228, 245 (S.D.N.Y. 2002); Disanto v. McGraw-Hill, Inc/Platt's Div., 97 Civ. 1090, 1998 WL 474136 at *9 n. 4 (S.D.N.Y. Aug. 8, 1998), aff'd 220 F.3d 61 (2d Cir. 2000). Under the NYHRL, "disabilities are not limited to physical or mental impairments, but may also include `medical' impairments. In addition, to qualify as a disability, the condition may manifest itself in one of two ways: (1) by preventing the exercise of a normal bodily function or (2) by being "demonstrable by medically accepted clinical or laboratory diagnostic techniques.'" State Div. of Human Rights, on Complaint of McDermott v. Xerox Corp., 65N.Y.2d 213, 218-19 (N.Y. 1985) (quoting N.Y. Exec. Law § 292 (21)); see also Reeves v. Johnson Controls World Services, 140 F.3d 144, 154 (2d Cir. 1998). The NYCHRL defines "disability" as "any physical, medical, mental or psychological impairment, or a history or record of such impairment." N.Y.C. Admin. Code. § 8-102 (16) (a).
The defendants concede for the purposes of this motion that the plaintiff is disabled under the terms of the NYHRL and NYCHRL. Furthermore, BPI clearly had notice of Romanello's Vasovagal Syncope as a result of the series of doctors notes submitted by the plaintiff. However, the plaintiff has not shown either that 1) with reasonable accommodations she could perform the essential functions of her job; or that 2) the defendants refused reasonably to accommodate her needs.
leave of absence was supported by a doctor's prescription for bed rest. (See Prescriptions attached as Exs. K, M 0 to Hodges Aff.)
A.
Throughout this action the plaintiff has asserted that on July 25, 2000, Carr terminated her from BPI, effective August 22, 2000. This factual contention is important to the plaintiff's effort to claim that the defendants took an adverse employment action against her by terminating her employment and that this is not a case where she abandoned her job by failing to contact her employer after her leave of absence ended. But the plaintiff's claim that she was informed of her termination on July 25, 2000 is inconsistent with her claim that, with a reasonable accommodation, she could perform the essential functions of her job because she would have had no job to perform. The plaintiff did not request her first medical leave until August 16, 2002, six days before she was allegedly to leave BPI. BPI granted her request for a ten day medical leave ending August 25, 2000. This accommodation alone, the first of three that the defendants eventually granted, would thus last three days past the date on which the plaintiff claims her job was to end.
The plaintiff cites no cases holding that an allegedly terminated employee is entitled to what, in essence, is an accommodation in the form of continued employment. Instead, the plaintiff bypasses the issue altogether. The plaintiff cannot claim that she was capable of doing her job and entitled to a reasonable accommodation of her disability while simultaneously alleging that her employment at BPI was to end prior to the conclusion of the first accommodation requested and granted by BPI.
The plaintiff cites Farina v. Equitable Life Assurance Soc., 1993 WL 856510, at *9 (N.Y.C. Coin. Hum. Rts. May 27, 1993) in which the New York City Human Rights Commission announced that a person on disability leave cannot be deemed unqualified for purposes of disability accommodation because, "[t]o make such a distinction would have the absurd result of undermining the ability of any employee on disability leave from seeking those accommodations that would permit him to return to work and stop relying upon disability benefits." But being out on disability leave is different from the position of an employee who has already been terminated. Thus, granting the plaintiff's request in this case would have the effect of accommodating her by granting her employment from which she had allegedly been terminated for reasons wholly unrelated to any alleged disability.
B.
If the plaintiff is in fact entitled to a reasonable accommodation for her disability, the defendants satisfied their obligations under the NYHRL and NYCHRL. A "reasonable accommodation" is an action that permits a disabled employee "to perform in a reasonable manner the activities involved in the job . . . sought or held . . . provided, however, that such actions do not impose an undue hardship on the business." N.Y. Exec. Law § 292 (21-e) (also listing examples of specific forms of accommodations, such as the provision of an accessible worksite or modified work schedules). The NYCHRL defines a reasonable accommodation as "such accommodation that can be made that shall not cause undue hardship. . . ." N.Y.C. Admin Code § 8-102 (18). Though a reasonable accommodation may include reassignment of the disabled employee to a vacant position for which she is qualified, it does not require employers to create new jobs or to reassign disabled employees if no positions are vacant. Pimentel v. City of New York, 00 Civ. 326, 2001 WL 1579553, at *14 (S.D.N.Y. Dec. 11, 2001). Nor are employers required to provide an employee with the particular accommodation she requests. Id. "[T]he employer[s] need only provide some reasonable accommodation." Id. (emphasis added) (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996)).
A leave of absence is one form of reasonable accommodation. Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 199 (S.D.N.Y. 1999). In the plaintiff's case, the defendants granted Romanello three leaves in order to accommodate her illness. First, on August 16, 2000 the plaintiff requested, and the defendants granted, a ten day medical leave to end August 25, 2000. At the end of that period, the plaintiff failed to report to work. Instead, Romanello faxed a prescription, dated August 25, 2000, to Aubin on August 27, 2000 asking for another week of bed rest. The defendants again granted the request. Finally, on August 28, 2000 the plaintiff submitted her final request for a two month leave. The defendants granted the request on the same day. In a letter sent two days later Ciafardini confirmed the leave and informed Romanello that "[d]ue to business needs, the company will be required to fill your position. When you are able to return to work, please contact us and we will consider you for any available Positions for which you are qualified." (Aug. 30 Ciafardini Let.) A follow up letter from Aubin laid out the status of Romanello's benefits. Shiseido would continue her medical coverage through the end of September, at which time her reduction in hours would be a qualifying event for purposes of obtaining COBRA coverage. The letter went on, "It is important for you to keep in touch with the Company . . . with regard to your status." (Aubin Letter.)
The plaintiff contends that Ciafardini's August 30, 2000 letter terminated Romanello's employment rather than granting her request for medical leave. Romanello bases this assertion primarily on the fact that BPI did not guarantee reinstatement at the end of the two months. But subsequent to this letter Romanello continued to receive health care coverage from the defendants before she became eligible for COBRA, and Ciafardini and Aubin both specifically told Romanello to contact BPI when she was ready to return to work. Nowhere does the letter indicate that the correspondence was meant to terminate the plaintiff rather than grant her the requested accommodation.
The plaintiff never put forth any ideas for accommodations that the defendants rejected, nor did she contact the company to arrange a different position when she was ready to return to work. In this way, the plaintiff's situation contrasts with that in Farina, which the plaintiff uses to highlight the need for an employer to explore a variety of possible accommodations. In that case, the plaintiff had requested specific accommodations that his employer refused to grant. For example, to accommodate his Tourette's Syndrome the plaintiff asked for flexibility in his daily start time and for meetings with his employers to discuss potential additional accommodations. Id. at *10. Instead of considering such accommodations, the defendants ordered the plaintiff back to work. Id. By contrast, Romanello never engaged the defendants in a discussion about potential alternative accommodations. In fact, she effectively terminated all avenues of communication with BPI by informing them that she was represented by counsel and had referred the matter on to counsel. Romanello concedes that she never contacted the defendants when she was ready to resume work, at which point it would have been reasonable to discuss any necessary accommodations.
Ultimately, the plaintiff proffers no evidence that she received insufficient accommodations. BPI granted two requested medical leaves. The defendants then placed the plaintiff on a leave of absence in response to her request for an absence of two more months. BPI continued her benefits through the month of September. The defendants made repeated statements to the plaintiff about contacting the company when she was ready to return to work. The plaintiff never did so. In light of the defendants' actions to accommodate the plaintiff, combined with the plaintiff's failure to indicate how such accommodations did not meet her expectations or what additional reasonable accommodations should be made, the plaintiff cannot sustain her claim for failure to provide reasonable accommodations under the NYHRL and NYCHRL.
VI.
For the foregoing reasons, the defendants' motion for summary judgment is granted. The plaintiff's motion for summary judgment with respect to her claim for failure to accommodate is denied. The Clerk of the Court is directed to enter judgment in favor of the defendants and to close this case.