Opinion
Civil Action 18 Civ. 1300 (AT) (SLC)
05-18-2022
EDMUND HECTOR BRYAN, Plaintiff, v. MEMORIAL SLOAN KETTERING CANCER CENTER and HECTOR OTTEY, Defendants.
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE ANALISA TORRES, United States District Judge:
I. INTRODUCTION
Pro se Plaintiff Edmund Hector Bryan (“Mr. Bryan”) filed this action against his former employer, Memorial Sloan Kettering Cancer Center (“MSK”), and former manager Hector Ottey (“Ottey,” together with MSK, “Defendants”), alleging that Defendants discriminated and retaliated against him and subjected him to a hostile work environment on the basis of his disabilities, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (the “ADA”). (ECF No. 2). Defendants now move pursuant to Federal Rule of Civil Procedure 56 for summary judgment on each of Mr. Bryan's claims. (ECF No. 58 (the “Motion”)). For the reasons set forth below, the Court respectfully recommends that the Motion be GRANTED in its entirety.
II. BACKGROUND
A. Factual Background
The following facts are undisputed unless otherwise indicated and are taken from Defendants' statement pursuant to Local Civil Rule 56.1 (ECF No. 59), documents Defendants submitted in support of the Motion (ECF Nos. 61, 62), and Mr. Bryan's submission in response to the Motion (ECF No. 67 (the “Response”)). The Court construes the facts “in the light most favorable to” Mr. Bryan, the non-movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (citation omitted).
Local Civil Rule 56.1 requires a party moving for summary judgment to submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Loc. Civ. R. 56.1(a). In response, the nonmoving party must submit “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Loc. Civ. R. 56.1(b). “Each numbered paragraph in the statement of material facts . . . will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” Loc. Civ. R. 56.1(c). “A pro se litigant is not excused from” complying with Local Civil Rule 56.1, Brandever v. Port Imperial Ferry Corp., No. 13 Civ. 2813 (KBF), 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014), and “[a] nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009).
In this case, Defendants served and filed their Rule 56.1 statement (ECF No. 59), along with a notice pursuant to Local Civil Rule 56.2 advising Mr. Bryan of the potential consequences if he did not respond to the Motion. (See ECF Nos. 63 (notice to pro se litigant); 64 (certificate of service)). Despite this notice, Mr. Bryan did not file a responsive 56.1 statement. Nonetheless, the Court must still afford “special solicitude” to Mr. Bryan, a pro se litigant, and exercises its discretion “to conduct an assiduous review of the record,” including Mr. Bryan's Response, in deciding the Motion. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citation omitted); see Vasquez v. Reilly, No. 15 Civ. 9528 (KMK), 2018 WL 2768648, at *1 n.1 (S.D.N.Y. June 8, 2018) (collecting cases in which courts conducted independent review of the record where pro se plaintiff failed to submit a proper Rule 56.1 statement).
To the extent that Mr. Bryan, in his Response, makes factual allegations without citations to the record or that contradict his sworn testimony, the Court disregards those allegations. See Holtz, 258 F.3d at 73 (explaining that the court is not required to search the record to find genuine issues of material fact that a non-moving party failed to raise); Vasquez, 2018 WL 2768648, at *1 n.1 (disregarding plaintiff's factual assertions in opposition papers that lacked citation or contradicted his sworn testimony); Berry v. Marchinkowski, 137 F.Supp.3d 495, 502 n.1 (S.D.N.Y. 2015) (same). Moreover, Mr. Bryan's Response does not dispute many of the factual assertions in Defendants' 56.1 statement, and the Court therefore, “considers any uncontroverted [and properly supported] portions of [Defendants'] 56.1 statement admitted.” Moore v. Shahine, No. 18 Civ. 463 (AT) (KNF), 2021 WL 827694, at *4 (S.D.N.Y. Mar. 4, 2021) (citing Smith v. Planas, 975 F.Supp. 303, 305 n.2 (S.D.N.Y. 1997)).
1. MSK
MSK “is a not-for-profit institution that treats cancer patients and conducts research to improve and develop new cancer treatments and cures.” (ECF No. 62 ¶ 5). It maintains policies relating to providing equal employment opportunities (the “EEO Policy”) and prohibiting harassment, discrimination, and retaliation on the basis of, inter alia, disability. (ECF No. 59 ¶¶ 16; see ECF Nos. 62-1, 62-2). The EEO Policy “applies to all terms and conditions of employment, including but not limited to hiring, classification, promotion or transfer, discipline, discharge, layoff, compensation, job training, and benefits.” (ECF No. 62-1 at 2). MSK maintains a “Workplace Accommodations” policy (the “Accommodations Policy”), which reflects that MSK “encourages applicants and employees with disabilities to request accommodations if needed to perform essential job functions, and to participate in the interactive process of identifying and implementing such accommodations.” (ECF No. 59 ¶ 7; see ECF No. 62-3). The Accommodations Policy provides:
Citations to page numbers refer to the ECF-assigned page number, unless otherwise noted.
An employee with a disability may request an accommodation to perform the essential functions of his/her job. The employee will be asked to provide documentation from a healthcare provider verifying the need for such accommodation. The department will provide a reasonable accommodation to the employee after engaging in an interactive discussion with the employee and other applicable HR representative(s) to determine the nature of accommodation best suited to the situation, which does not place an undue burden or hardship on [MSK].(ECF No. 62-3 at 2-3).
MSK also maintains several policies permitting its employees to request time off from work. One is MSK's “Vacation” policy (the “Vacation Policy”), which allows employees to “accrue vacation hours on a bi-weekly basis beginning from their date of hire” and based on various factors including “their salary grade, length of continuous service, and eligible hours.” (ECF No. 62-5 at 2)). “Employees must obtain approval for vacation in advance from their manager who will make determinations based on factors including the employee's length of service and the needs of the department.” (Id.) MSK allows employees to “use up to fifteen (15) hours of their vacation time per calendar year on an emergency basis to meet personal needs.” (Id. at 3). MSK also maintains a “Sick Time” policy that “applies to all MSK employees[.]” (ECF No. 62-6 (the “Sick Time Policy”) at 2). Specifically, MSK employees “may accrue a maximum of five hundred forty (540) hours of sick time[.]” (Id.) Under the Sick Time Policy, “[a]n employee requesting sick time for medical appointments with a healthcare provider must provide at least seven (7) days' advance notice to their employee's [sic] manager.” (Id. at 3). The Sick Time Policy makes clear that “sick days are not an entitlement equivalent to vacation days[,]” and that “[e]xcessive use of sick days without authorization pursuant to the Family and Medical Leave Act (‘FMLA'), the New York City Earned Sick Time Act (‘ESTA') or MSK's internal leave policies may result in corrective action up to and including termination of employment.” (Id. at 2 (emphasis original)). Mr. Bryan was aware of the Sick Time Policy and that excessive use of sick time could result in termination. (ECF No. 59 ¶¶ 33, 38).
Similarly, MSK has a “Family and Medical Leave” policy (the “FMLA Policy”). (ECF No. 59 ¶ 9; see ECF No. 62-4). Under its FMLA Policy, MSK “provides its eligible employees up to twelve (12) weeks of unpaid, job-protected leave in a twelve (12) month period for qualifying family and medical reasons[,]” including for a “chronic serious health condition that continues over an extended period of time, requires periodic visits to a healthcare provider, and may involve occasional episodes of incapacity.” (ECF No. 62-4 at 2-3). The FMLA Policy also allows employees to request leave on an “intermittent” basis, i.e., “in blocks of time, or by reducing the normal weekly or daily work schedule.” (Id. at 4). “Employees who need leave intermittently or on a reduced leave schedule for planned medical treatment must make a reasonable effort to schedule the treatment so as not to disrupt unduly MSK's operations.” (Id.) The FMLA Policy allows employees to substitute their paid leave for FMLA-approved leave, provided the employee has exhausted their accrued sick leave. (Id. at 5). Mr. Bryan was familiar with MSK's FMLA Policy. (ECF No. 59 ¶ 39).
2. Mr. Bryan's employment at MSK
On May 8, 1989, Mr. Bryan began working for MSK as an instrument technician in MSK's Central Processing Department (“CPD”). (ECF Nos. 59 ¶ 21; 61-1 at 3-4). The CPD “is responsible for decontaminating, sterilizing, packaging, and distributing reusable hospital surgical instrumentation and equipment in accordance with various hospital and department guidelines.” (ECF No. 59 ¶ 15; see ECF Nos. 61-1 at 12-14; 61-5). As an instrument technician, Mr. Bryan's responsibilities included ensuring compliance with MSK's “Infection Control practices[,]” inspecting and preparing instrumentation and equipment during assembly and packaging, and ensuring proper sterilization, storage, and distribution of instrumentation and equipment. (ECF No. 61-5 at 2-6). At his deposition, Mr. Bryan acknowledged that “all of” CPD's functions are important to patient care at MSK, because “if you don't sanitize objects properly . . . [y]ou could pass on . . . some kind of infection to the patient.” (ECF No. 61-1 at 15-16). Mr. Bryan also agreed that “fully staffed and competently trained staff is important” to the CPD's successful operation. (Id. at 17).
a. The 2002 Complaint
In September 2002, Mr. Bryan filed a complaint (the “2002 Complaint”) with the New York City Commission on Human Rights (“NYCCHR”), alleging that MSK and three of its then-employees-John Meggs (“Meggs”), Rupert Gillette, and Sheila Donoghue-discriminated and retaliated against Mr. Bryan, and created a hostile work environment, on the basis of his perceived sexual orientation. (ECF No. 59 ¶ 23; see ECF No. 61-2). In July 2006, following a trial, an administrative law judge (“ALJ”) recommended dismissal of the 2002 Complaint. (ECF No. 612 at 2-11). On October 2, 2006, the NYCCHR adopted the ALJ's recommendation and dismissed the 2002 Complaint. (Id. at 12-14).
b. Mr. Bryan's pursuit of a promotion
In June 2006, Mr. Bryan asked Meggs how to apply for a recently-vacated Lead Technician position in the CPD (the “2006 Lead Technician Position”). (ECF No. 67-2 at 30). Mr. Bryan claims that, initially, Meggs told him he needed to interview for the position, and that he repeatedly asked Meggs “to set up the interview, but he never did.” (ECF No. 61-1 at 29). Meggs later told Mr. Bryan that “the position was not open[,]” and Mr. Bryan subsequently learned that someone from outside MSK was “already being trained” for the position. (ECF No. 67-2 at 30-31).
In September 2006, Mr. Bryan learned that a co-worker, Kevin Walrond (“Walrond”), was promoted to the position of Instrument Specialist (the “2006 Instrument Specialist Position”). (ECF No. 67-2 at 31). Mr. Bryan claims that “[t]his caught the entire staff offguard [sic] because the position was never announced or posted.” (Id.; see ECF No. 61-1 at 21).
Mr. Bryan alleges that, sometime in 2006, Meggs told him that, because of the 2002 Complaint, MSK would not promote him. (ECF No. 61-1 at 24). Mr. Bryan concedes that Meggs did not “give [Mr. Bryan] any other reasons why [MSK] would not promote [him]” and did not “reference any . . . medical problems [Mr. Bryan] had[.]” (Id.)
In July 2007, Mr. Bryan applied and interviewed with Meggs for an Instrument Specialist position (the “2007 Instrument Specialist Position”). (ECF Nos. 59 ¶ 27; 67-2 at 31). Several weeks later, Meggs told Mr. Bryan that “he had suspended the position of instrument specialist indefinitely.” (ECF No. 67-2 at 31). MSK claims that no one was hired to fill the position. (ECF No. 59 ¶ 27). In his Response, Mr. Bryan suggests that MSK “promoted Isaac Donkor who had just started working ther[e] not too long ago.” (ECF No. 67 at 8). Mr. Bryan also claims that Sonia Bailey (“Bailey”), “a Jamaican[,] was hired for the position of Instrument Specialist [(the ‘Undated Instrument Specialist Position')], a position that [Mr. Bryan] applied for[,]” and that “[s]he resigned when she was retaliated against by manager Hector Ottey and supervisor Rupert Gillete [sic] for complaining about the same problems I complained about.” (Id.) More specifically, Mr. Bryan claims that Bailey resigned after complaining “about the working conditions, hatred towards Jamaicans, HOSTILE environment, [and the] refusal by supervisor Rupert Gillette to give her assistance with heavy duties.” (Id. at 24). Mr. Bryan provides no additional information about Bailey, including the dates of her employment or whether she had a disability.
Around 2010, Ottey became Mr. Bryan's manager. (ECF No. 59 ¶ 28). Sometime after that, Ottey “called [Mr. Bryan] a nothing and a nobody in a staff meeting in front of people and said [Mr. Bryan] was an example of poor judgment.” (ECF No. 61-1 at 35). Mr. Bryan reported the episode to human resources (the “2010 Report”). (Id. at 35-36). At his deposition, Mr. Bryan could not recall ever reporting that Ottey discriminated against him based on a disability. (Id. at 36). Sometime after the 2010 Report, Mr. Bryan told Ottey that he was interested in applying for a recently vacated Lead Technician position (the “2010 Lead Technician Position”). (Id. at 34). Ottey told Mr. Bryan that, because of the 2010 Report, he was not going to promote him. (Id.)
In January 2012, Mr. Bryan applied and interviewed with Ottey for a supervisor position in the CPD (the “2012 Supervisor Position”). (ECF Nos. 59 ¶ 29; 61-1 at 39-40, 42). Sometime after the interview, Ottey “politely” told Mr. Bryan, “I'm sorry, Edmund, you're not going to get it. I'm looking for someone with more experience.” (Id. at 41-42). Ottey hired Crown Prince (“Prince”) for the supervisor position. (Id. at 42).
c. Mr. Bryan's Termination
Sometime in 2007, Mr. Bryan “was diagnosed with a leg condition that caused pain and swelling in his legs.” (ECF No. 59 ¶ 40). Mr. Bryan also purports to suffer from major depressive disorder. (ECF No. 2 at 4). At his deposition, Mr. Bryan described his leg condition as an “intermittent” issue that would “flare up” and require him to visit a doctor. (ECF Nos. 59 ¶ 41; 61-1 at 17). Mr. Bryan often used vacation days to schedule doctors' visits. (ECF No. 61-1 at 9, 17).
Mr. Bryan testified that, for an unspecified period before 2013, MSK did not require manager approval of vacation time. (ECF No. 61-1 at 9). For example, in 2012, he was able to use “a month's worth of vacation time to do whatever [he] wanted to do.” (Id.) At that time, employees only had to request vacation days using MSK's computer system. (Id.) According to Mr. Bryan, “[t]he system [knew] how many people can be off at one time, and it would block [employees] so that they would have sufficient staff to cover.” (Id.) Mr. Bryan testified that in “mid 2013” MSK changed the Vacation Policy to require manager approval. (Id.) Mr. Bryan said he did not know why MSK implemented this change, which applied to “everyone.” (Id. at 9-10).
After the Vacation Policy changed, Prince began denying some of Mr. Bryan's vacation requests. (ECF No. 61-1 at 10, 56). In response, Mr. Bryan began requesting vacation days using a method he called “cluster bombing,” meaning that he would submit requests for numerous days “all over a specific period of time” and then “see what [was] approved.” (Id. at 11-12). In denying Mr. Bryan's vacation requests, Prince told him that the CPD was short-staffed. (Id. at 56).
Mr. Bryan “went to HR to report that [he] wasn't getting time off from work” and to request “access to [his] vacation time.” (ECF No. 61-1 at 65-66). According to Mr. Bryan, an MSK HR representative informed him of his right to request leave under the FMLA and, out of “concern for [his] well-being[,]” initiated an application for FMLA leave on his behalf. (Id. at 64). In a letter dated March 5, 2013, MSK notified Mr. Bryan of his eligibility for FMLA leave and requested certain paperwork “necessary to certify [his] leave[,]” including a certification from a healthcare provider. (ECF No. 61-6 at 3). The letter reflects that MSK “received notice of [Mr. Bryan's] need for a leave of absence” for a “Serious Health Condition” on March 4, 2013, and instructed Mr. Bryan to submit the requested paperwork by March 19, 2013. (Id. at 2).
Mr. Bryan admitted that he never completed the application for FMLA leave, because he believed he should be able to use his sick time and vacation time instead. (ECF No. 61-1 at 69; see id. at 17 (“I never applied.”). Mr. Bryan explained that, “[b]ecause this was an intermittent issue[,]” he believed “the problem wasn't persistent [enough] for [him] to take a lengthy time off from work.” (Id. at 18). Mr. Bryan explained:
All I had to do was schedule periodic appointments with the doctor. So it was imperative that I'm able to make appointments. So I needed to use my vacation days to have appointments with the doctor. That's what was important. What got me nailed is like out of the blue I would be all messed up and I just couldn't get up and move. And that would get me nailed. That would get me nailed.(Id.)
Ottey explained to Mr. Bryan that he was eligible for “intermittent” FMLA leave. (ECF No. 59 ¶ 44; see ECF No. 61-1 at 62-63). When asked at his deposition whether “intermittent FMLA leave” would have allowed him to call out of work when his condition was “flaring up,” Mr. Bryan responded, “I'm not sure how that is used because I never used it before.” (Id. at 62).
Mr. Bryan told MSK that, rather than apply for FMLA leave, he preferred to use his accrued vacation and sick leave, but that MSK “avoided the topic of [his] vacation time.” (ECF No. 61-1 at 67-69). Mr. Bryan testified:
I'm a 25-year veteran. I have, what, a month of vacation days sitting there, [and] three weeks of sick time. I'm like, hello. If you let me know what days are available, I will select those .... I can schedule everything I need around certain things. If I'm able to get to a doctor and do what has to be done, the chances of any kind of flare-up nailing me are small .... I don't need a whole month at one shot. I just need to know if you have specific days available, what are those days. I will go to a doctor and schedule stuff immediately, get myself in, get the treatment I need, stay home, rest up, [and] come back to work in a better shape. It's that simple. If I'm able to access my time, I can make things happen.(Id. at 68-69).
On or about July 15, 2014, MSK terminated Mr. Bryan's employment. (ECF No. 61-1 at 8; see ECF No. 61-7). Ottey told Mr. Bryan that the basis for his termination was his “[e]xcessive absence.” (ECF No. 61-1 at 8). In a document titled “Termination of Employment,” MSK indicated that, since 2011, Mr. Bryan had:
continuously demonstrated a pattern of poor availability with little to no improvement after counseling and progressive disciplinary action steps. This pattern of behavior negatively impact[ed] departmental productivity and staff morale; co-workers [were] sometimes required to make adjustments to their assignments and workload in order to compensate for his unscheduled absences.(ECF No. 61-7 (the “Termination Letter”) at 2). The Termination Letter also reflected that, between June 2013 and July 2014, Mr. Bryan “had 13 occurrences of unscheduled absences” resulting in 19 days of missed work. (Id.) Between August 16, 2011 and September 25, 2013, Mr. Bryan received counseling, verbal warnings, and written warnings regarding his absences. (Id. at 3). Despite these actions, Mr. Bryan recorded four more unscheduled absences between October 3, 2013 and November 12, 2013, as a result of which MSK issued a “final warning” on November 15, 2013. (Id. at 2-3). On March 22, 2014, MSK issued a “Second Final Written Warning.” (Id. at 3). The Termination Letter reflects that Mr. Bryan subsequently “incurred 4 additional sick occasions, 3 of which were before or after scheduled days off[.]" (Id. at 2)
Mr. Bryan testified that “some” of the absences reflected in the Termination Letter were “probably vacation days." (ECF No. 61-1 at 75; see also ECF No. 2 at 9 (alleging that Defendants' “claims of large amounts of callouts are mixed in with normal vacation days across several years"). He also denied having thirteen “unscheduled" absences in the year preceding his termination. (ECF No. 61-1 at 75). In his Response, Mr. Bryan claims that, after the Second Final Written Warning, he “called out" once, not four times. (ECF No. 67 at 3). At his deposition, Mr. Bryan conceded that “other employees [were] disciplined for unexcused absences." (ECF No. 61-1 at 55-56).
During Mr. Bryan's employment, no MSK employee ever harassed him because of a disability. (ECF No. 59 ¶ 47; see ECF No. 61-1 at 46).
B. Procedural Background
1. The 2014 Complaint
On November 4, 2014, Mr. Bryan filed a complaint (the “2014 Complaint”) with the NYCCHR against MSK and Prince, claiming that they “failed to accommodate his disability, terminated his employment, and altered the terms, conditions, and privileges of his employment because of his disability[,]” in violation of the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq (“NYCHRL”). (ECF No. 61-3 at 2). On September 12, 2017, following an investigation, the NYCCHR's Law Enforcement Bureau (“LEB”) found “no probable cause” to support Mr. Bryan's allegations and dismissed the 2014 Complaint. (Id.) LEB made the following findings:
There is no evidence to support [Mr. Bryan]'s allegation that he was treated less well than his peers.
...
LEB's investigation found no credible evidence that Respondents failed to provide [Mr. Bryan] with an accommodation for his disability. To the contrary, evidence suggests that Respondents attempted to provide [Mr. Bryan] with the time off he requested and that it was [Mr. Bryan] who made such an accommodation impossible for Respondents to implement, effectively truncating the cooperative dialogue.
...
Even if Respondents were aware of [Mr. Bryan]'s disabilities, LEB's investigation found no credible evidence indicating that the termination of [Mr. Bryan]'s employment was motivated by the disabilities. In contrast, LEB's investigation found that Respondents had legitimate, non-discriminatory reasons for terminating [his] employment: namely, that [Mr. Bryan] was consistently absent from work, taking more days off than [MSK]'s policies permitted. While [Mr. Bryan] alleged that he was absent from work because of his disabilities, [MSK] took steps to reasonably accommodate [Mr. Bryan,] . . . [who] failed to respond to [MSK]'s efforts to offer him an accommodation in the form of intermittent
FMLA leave, thereby cutting off the cooperative dialogue. [Mr. Bryan] then continued to fail to comply with [MSK]'s sick and vacation leave policies.(Id. at 15, 16, 19).
On November 21, 2017, the U.S. Equal Employment Opportunity Commission adopted the NYCCHR's findings and notified Mr. Bryan of his right to sue under federal law within 90 days. (ECF No. 2 at 10).
2. Federal Proceedings
On February 13, 2018, Mr. Bryan commenced this action against Defendants. (ECF No. 2). He alleged that, based on his disability, Defendants terminated his employment, failed to promote him or accommodate his disability, treated him worse than similarly employees, retaliated against him, and created a hostile work environment. (Id. at 5). He identified his disabilities as “major depressive disorder” and “ongoing leggs [sic] and back injury.” (Id. at 4). According to Mr. Bryan. “[t]his all began because of” the 2002 Complaint. (Id. at 5). He alleged, inter alia, that, “[a]long with denying me time off from work[,] I was told by managers that I would never be promoted because [they] did not [want] the workers seeing anyone suing them and benefiting from it.” (Id. at 9).
On May 5, 2021, Defendants requested leave to file the Motion. (ECF No. 51). On June 14, 2021, the Honorable Analisa Torres referred the anticipated Motion for a report and recommendation. (ECF No. 52). On July 21, 2021, the Court held an in-person conference regarding the anticipated Motion. (ECF min. entry July 21, 2021; ECF No. 73).
On September 3, 2022, Defendants filed the Motion. (ECF No. 58). On October 25, 2021, Mr. Bryan filed his Response. (ECF No. 67). On November 24, 2021, Defendants filed a reply. (ECF No. 69).
III. DISCUSSION
A. Legal Standards
1. Summary judgment
Summary judgment must be granted when “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). No genuine issue of material fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must “construe the evidence in the light most favorable to the non-moving party and to draw all reasonable inferences in its favor.” Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003). “The party seeking summary judgment bears the burden of demonstrating the absence of any genuine factual dispute.” Astorga v. Allstate Oil Recovery, Co., No. 16 Civ. 5068 (SN), 2018 WL 1441377, at *1 (S.D.N.Y. Mar. 22, 2018) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial[,]” summary judgment will be granted. Celotex, 477 U.S. at 322-23. To defeat summary judgment, the non-moving party must do more than demonstrate “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, and may not rely on “conclusory allegations.” Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Similarly, “[t]he fact that opposing parties assert competing versions of the same event is not in itself sufficient to preclude summary judgment.” Krynski v. Chase, 707 F.Supp.2d 318, 322 (E.D.N.Y. 2009). Rather, “[c]ontradictory testimony establishes a ‘genuine' issue for trial only where the conflicting testimony, if credited, would lead to a different legal outcome.” Id.
“The Second Circuit has emphasized ‘the need for caution about granting summary judgment to an employer in a discrimination case where . . . the merits turn on a dispute as to the employer's intent.'” Wells v. Achievement Network, No. 18 Civ. 6588 (KPF), 2021 WL 810220, at *9 (S.D.N.Y. Mar. 2, 2021) (quoting Lyman v. N.Y. & Presbyterian Hosp., No. 11 Civ. 3889 (KPF), 2014 WL 3417394, at *7 (S.D.N.Y. July 14, 2014); see Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010). “Because direct evidence of an employer's discriminatory intent will rarely be found, ‘affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994)). “Even in the discrimination context, however, a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment, and show more than some metaphysical doubt as to the material facts.” Gorzynski, 596 F.3d at 101 (internal citation and quotation omitted)
2. Legal Standards under the ADA
Mr. Bryan asserted his claims under the ADA only, and not under the disability discrimination provisions of the New York State Human Rights Law (“NYSHRL”) or NYCHRL. (ECF No. 2 at 4). The Court notes, however, that even if Mr. Bryan intended to assert his claims under the NYSHRL or NYCHRL, those claims would be barred because he brought the same claims in the 2014 Complaint before the NYCCHR, which dismissed the claims based on a finding of “no probable cause.” (ECF No. 61-3; see N.Y. Exec. Law § 297(9) (“Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights ....”); N.Y.C. Admin Code § 8-502(a) (“[A]ny person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the [NYCCHR] or with the [New York State Division of Human Rights (‘NYSDHR')] with respect to such alleged unlawful discriminatory practice ....”); Clemmer v. Fordham Bedford Cmty. Servs., No. 14 Civ. 2343 (AT) (JLC), 2015 WL 273657, at *4 (S.D.N.Y. Jan. 16, 2015) (“[O]nce an individual brings a discrimination claim before the NYSDHR [or NYCCHR], [he] is barred from pressing the same claim under the NYSHRL or the NYCHRL in state or federal court unless the NYSDHR [or NYCCHR] has dismissed the claim on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled.”) (citation and alterations omitted).
The purpose of the ADA is to “provide a comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(1), and “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). The ADA thus makes it unlawful for an employer to “discriminate against a qualified individual on the basis of disability in regard to,” inter alia, “discharge of employees . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
a. Claims analyzed under the McDonnell Douglas Standard
Mr. Bryan's discrimination claims (i.e., his failure to promote, reasonable accommodation, and discriminatory discharge claims), and his retaliation claim are subject to “the familiar burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Clark v. Jewish Childcare Ass'n, Inc., 96 F.Supp.3d 237, 248 (S.D.N.Y. 2015); see Nero v. MTA N.Y.C. Transit Auth., No. 15-CV-3751 (BMC)(LB), 2016 WL 6781230, at *3 (E.D.N.Y. Nov. 16, 2016). “Under this standard, Plaintiff must show that: (1) [he] is a member of a protected class; (2) [he] was qualified for the position [he] held; (3) [he] suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination.” Milord-Francois v. N.Y.S. Office of the Medicaid Inspector Gen., No. 19 Civ. 179, 2020 WL 5659438 (LJL), at *10 (S.D.N.Y. Sept. 23, 2020). “If a plaintiff can meet the initial burden of showing a prima facie case, ‘the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason for the [adverse employment action]. If the defendant does so, the burden returns to the plaintiff to show that the real reason for [the adverse employment action] was' [his] membership in a protected class.” Boatright v. U.S. Bancorp, No. 18 Civ. 7293 (LJL), 2020 WL 7388661, at *14 (S.D.N.Y. Dec. 16, 2020) (citing Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010)).
i. Failure to promote claim
“To establish a prima facie case, a plaintiff claiming a failure to promote must show ‘[he] applied for an available position for which [he] was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.'” Zito v. Fried, Frank, Harris, Shriver & Jacobson, LLP, 869 F.Supp.2d 378, 398 (S.D.N.Y. 2012) (quoting Brown v. Coach Stores, 163 F.3d 706, 710 (2d Cir.1998)). “[A] plaintiff is excused from showing that [he] applied for a specific promotional opportunity when the plaintiff demonstrates that ‘(1) the vacancy at issue was not posted, and (2) the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer.'” Griffith v. Metro. Transit Auth.-N.Y.C. Transit, No. 19 Civ. 6234 (AT), 2022 WL 845786, at *7 (S.D.N.Y. Mar. 22, 2022) (quoting Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004)).
ii. Failure to accommodate claim
The ADA requires an employer to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,” and the failure to do so constitutes impermissible discrimination. 42 U.S.C. § 12112(b)(5)(A). This requirement only applies to persons with an actual, as opposed to a perceived, disability. 42 U.S.C. § 12201(h). To make a prima facie showing of a failure to provide reasonable accommodation, a plaintiff must prove that (1) he 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 accommodations he could perform the essential functions of the job at issue (i.e., he is a “qualified individual”); and (4) the employer refused to make such accommodations. Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006) (“Graves I”). An employer may avoid liability by demonstrating that the requested accommodation would impose “an undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A); see Graves I, 457 F.3d at 184. “It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits,” Borkowski v. Valley Central School District, 63 F.3d 131, 138 (2d Cir. 1995).
“As the Second Circuit has noted, ‘[t]he ADA envisions an ‘interactive process' by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated.'” Sivio v. Vill. Care Max, 436 F.Supp.3d 778, 794 (S.D.N.Y. 2020) (quoting Jackan v. N.Y.S. Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000)). “It has been further held that ‘[a]n employee who is responsible for the breakdown of that interactive process may not recover for a failure to accommodate.'” Id. (quoting Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 Fed.Appx. 943, 945-46 (2d Cir. 2008)). “In considering a claim regarding a breakdown in the interactive process, courts should attempt to isolate the cause of the breakdown of the interactive process and then assign responsibility.” Id. at 795 (citations and alterations omitted).
iii. Discriminatory discharge claim
The ADA prohibits an employer from discharging an employee because of his disability. See 42 U.S.C. § 12112(a). To establish a prima facie case of discriminatory discharge under the ADA, a plaintiff must show that: “(1) [his] employer is subject to the ADA; (2) [he] suffers from a disability within the meaning of the ADA; (3) [he] could perform the essential functions of [his] job with or without reasonable accommodation [i.e., that he is a ‘qualified individual' under the statute]; and (4) [he] was fired because of [his] disability.” Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998).
iv. Retaliation claim
“The ADA makes it unlawful for an employer to ‘discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.'” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (quoting 42 U.S.C. § 12203(a)). “The Second Circuit has identified four elements for a prima facie case of retaliation: ‘(i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against [the] plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.'” Clark, 96 F.Supp.3d at 250 (quoting Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir.2002)).
b. Hostile work environment claim
The Second Circuit recently recognized hostile work environment claims under the ADA. See Fox v. Costco Wholesale Corp., 918 F.3d 65, 73-74 (2d Cir. 2019); Harvin v. Manhattan and Bronx Surface Transit Operating Auth., 767 Fed.Appx. 123, 128 (2d Cir. 2019) (concluding that “hostile work environment claims are cognizable under the ADA” applying “the standards applicable to claims under Title VII of the Civil Rights Act”) (citing Fox, 918 F.3d at 74); Viruet v. City of New York, No. 16 Civ. 8327 (JGK), 2019 WL 1979325, at *17 (S.D.N.Y. May 3, 2019) (“In the recent case Fox v. Costco Wholesale Corp., the court determined that [hostile work environment] claims can be asserted under the ADA”). Accordingly, “the standards applicable to claims under Title VII of the Civil Rights Act” of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., are applicable to hostile work environment claims based on disability. Harvin, 767 Fed.Appx. at 128.
An employer creates a hostile work environment when the “workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . . so long as there is a basis for imputing the conduct that created the hostile environment to the employer.” Rasmy v. Marriott Int'l, Inc., 952 F.3d 379, 387 (2d Cir. 2020) (quoting Kaytor, 609 F.3d at 546) (emphasis and internal citations omitted). To establish a hostile work environment claim, a plaintiff must show that (i) “the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of . . . [his] work environment,” and (ii) the harassment was based on [his] protected group. Harvin, 767 Fed.Appx. at 128 (quoting Petrosino v. Bell Atl., 385 F.3d 210, 221-22 (2d Cir. 2004)); see Hernandez v. City of New York, No. 11 Civ. 6644 (KPF) (DF), 2015 WL 321830, at *17 (S.D.N.Y. Jan. 23, 2015). To assess whether a plaintiff has met this burden, a district court must consider “the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim's [job] performance.” Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (liability for a hostile work environment is “determined only by looking at all the circumstances”). This assessment has both “objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Rivera, 743 F.3d at 20) (internal citations omitted).
“A mild, isolated incident does not make a work environment hostile[.] [T]he test is whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (internal citations omitted). Similarly, “[r]un-of-the-mill workplace conflicts, troubling though they may be, do not rise to the level of an objectively hostile workplace.” Harvin, 767 Fed.Appx. at 128 (finding that incidents where plaintiff's supervisors were “rude and hostile” reflected “only fraught relationships with her supervisors” that did not rise to level of hostile work environment); see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (holding that “the ordinary tribulations of the workplace, such as the sporadic use of abusive language,” do not rise to a level constituting a hostile work environment); Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999) (“Isolated, minor acts or occasional episodes do not warrant relief.”).
B. Application
1. Ottey's liability
Defendants argue that. Mr. Bryan's claims against Ottey must be dismissed because there is no individual liability under the ADA. (ECF Nos. 60 at 26-27; 69 at 10). Mr. Bryan did not address this argument in his Response. (See ECF No. 67).
The Court agrees with Defendants. “[A]s a matter of law, individuals may not be held liable under the ADA, and [Mr. Bryan] does not . . . offer an argument to the contrary.” Cornetta v. Town of Highlands, 434 F.Supp.3d 171, 185 (S.D.N.Y. 2020) (citing Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (“[I]n the context of employment discrimination, the retaliation provision of the ADA[ ] . . . cannot provide for individual liability.”); see also Wells, 2021 WL 810220, at *12 n.10 (granting summary judgment and dismissing ADA discrimination, failure to accommodate, and retaliation claims against individual defendants, because “the ADA does not provide for individual liability”); Akinde v. N.Y.C. Health & Hosp. Corp., No. 16 Civ. 8882 (GHW), 2019 WL 4392959, at *8 (S.D.N.Y. Sept. 13, 2019) (“[M]any district courts in this Circuit have determined that the ADA's . . . provisions . . . do not provide for individual liability.”) (collecting cases); Clemmer v. Fordham Bedford Cmty. Servs., No. 14 Civ. 2343 (AT) (JLC), 2015 WL 273657, at *4 (S.D.N.Y. Jan. 16, 2015) (dismissing ADA claims against individual defendants).
Accordingly, the Court respectfully recommends that Defendants' Motion as to Mr. Bryan's claims against Ottey be GRANTED.
2. MSK's liability
a. Failure to promote claim
Mr. Bryan claims MSK failed to promote him because of his disability. (ECF No. 2 at 5). At his deposition and in his Response, Mr. Bryan identified the following attempts at promotion: (i) he expressed interest in a 2006 Lead Technician Position but was never interviewed despite repeated requests (ECF No. 67-2 at 30); (ii) he learned that a co-worker, Walrond, was promoted to the 2006 Instrument Specialist Position, which MSK had “never announced or posted” (ECF Nos. 67-2 at 31; see ECF No. 61-1 at 21); (iii) he applied and interviewed for the 2007 Instrument Specialist Position, but was told that the position was “suspended” and later learned it was given to another employee (ECF Nos. 59 ¶ 27; 67-2 at 31; 67 at 8); (iv) he was passed over for the Undated Instrument Specialist in favor of Bailey (ECF No. 67 at 8); (v) he expressed interest in the 2010 Lead Technician Position, but Ottey told Mr. Bryan that, because of the 2010 Report, he was not going to promote him (ECF No. 61-1 at 34); and (vi) he applied and interviewed for the 2012 Supervisor Position, but Ottey “politely” told him that MSK was “looking for someone with more experience.” (ECF Nos. 59 ¶ 29; 61-1 at 30-42).
MSK does not dispute that Mr. Bryan applied, or attempted to apply, and was qualified for these positions. (ECF No 60 at 17-18). MSK argues, however, that Mr. Bryan fails to establish a prima facie failure to promote claim because he cannot show that he was denied any promotion “because of his disability” (id. at 17), i.e., that he “was rejected under circumstances which give rise to an inference of unlawful discrimination.” Zito, 869 F.Supp.2d at 398.
“An employer takes action because of disability where he acts based on conduct caused by the handicap.” Smith v. N. Shore-Long Island Jewish Health Sys., 286 F.Supp.3d 501, 528 (E.D.N.Y. 2018) (citing Teahan v. Metro-N. Commuter R.R. Co., 951 F.2d 511, 516 (2d Cir. 1991)). “Inference of discrimination ‘is a ‘flexible [standard] that can be satisfied differently in differing factual scenarios.'” Id. at 526 (quoting Howard v. MTA Metro-N. Commuter R.R., 866 F.Supp.2d 196, 204 (S.D.N.Y. 2011)). “A plaintiff can support such an inference by (a) ‘demonstrating that similarly situated employees [outside the protected class] were treated more favorably,' (b) ‘showing that there were remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus,' or (c) ‘proving that there were other circumstances giving rise to an inference of discrimination on the basis of [the] plaintiff's [protected classification].” Tapia v. TWC Admin. LLC, No. 17 Civ. 431 (KMK), 2018 WL 5016608, at *9 (S.D.N.Y. Oct. 16, 2018) (quoting Gelin v. Geithner, No. 06 Civ. 10176, 2009 WL 804144, at *15 (S.D.N.Y. Mar. 26, 2009)). The law is clear, however, that “[c]onclusory and speculative allegations will not suffice to demonstrate discriminatory intent.” Id. (collecting cases).
In Vega v. Hempstead Union Free School District, the Second Circuit explained that a plaintiff can “prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employer's stated reason for its employment action was pretext to cover up discrimination . . . or by otherwise creating a ‘mosaic' of intentional discrimination by identifying ‘bits and pieces of evidence' that together give rise to an inference of discrimination.” 801 F.3d 72, 87 (2d Cir. 2015) (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998) abrogated in part on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). In Vega, the Second Circuit pointed to at least three allegations that the plaintiff suffered an adverse employment action “because of” his Hispanic ethnicity: (1) “he was assigned a large percentage of Spanish-speaking students because he [was] Hispanic and bilingual, while his similarly-situated co-workers were not assigned additional work”; (2) a “University of Puerto Rico” banner was placed outside his classroom; and (3) there was an attempt to transfer him to a Hispanic principal's school. 801 F.3d at 88-89. The court found that these actions, in combination, were “plausibly connected to [his] Hispanic background and therefore provide[d] a contextual basis for inferring discrimination,” and he had “plausibly alleged that his Hispanic background was a ‘motivating factor'” that contributed to his adverse employment action. Id. at 89 (citing Raniola v. Bratton, 243 F.3d 610, 628 (2d Cir. 2001)).
Having conducted “an assiduous review of the record,” Holtz, 258 F.3d at 73, the Court concludes that Mr. Bryan “has failed to provide evidence upon which a reasonable jury could infer that [MSK]'s failure to promote [him] was motivated, in whole or in part, by disability-based discriminatory animus.” Koenig v. City of New Haven, No. 3:16-CV-514 (JCH), 2018 WL 1440175, at *9 (D. Conn. Mar. 21, 2018). Mr. Bryan has not adduced any evidence-direct or indirect- that MSK was motivated by his disability when denying him a promotion. Mr. Bryan also has not alleged-much less presented evidence to suggest-that any MSK employee made remarks that could be viewed as reflecting discriminatory animus based on his disability. And while he identifies some of the individuals who were promoted to positions he applied for, Mr. Bryan has produced no evidence as to those employees' qualifications or performance, much less their disability status. As a result, to the extent Mr. Bryan claims these employees were treated more favorably, he has failed “to establish that [he] shares a sufficient amount of significant employment characteristics with the other [MSK employees] with whom [he] seeks to compare [himself].” Hettiarachchi v. Cnty. of Suffolk, No. 14CV6731DLISLB, 2020 WL 5848617, at *19 (E.D.N.Y. Sept. 30, 2020) (dismissing failure to promote claim and noting that “[w]hen failure to promote claims are founded upon a reference to comparators, Plaintiff and the comparators must ‘share a sufficient amount of significant employment characteristics,” including “similarities in seniority, performance, and specific work duties”) (citing Fletcher v. ABM Bldg. Value, 2018 WL 1801310, at *10 (S.D.N.Y. Mar. 28, 2018), aff'd, 775 Fed.Appx. 8 (2d Cir. 2019)).
As MSK points out, Mr. Bryan's own testimony demonstrates that his disability was not a factor in MSK's decisions not to promote him. (ECF No. 60 at 17-18). According to Mr. Bryan, he was denied the 2006 Lead Technician Position and the 2006 Instrument Specialist Position before the onset of his disabilities in 2007. (ECF No. 59 ¶ 40). Similarly, Mr. Bryan testified that, sometime in 2006, Meggs-who later denied him the 2007 Instrument Specialist Position-told him that, because of the 2002 Complaint (which did not relate to disability discrimination), MSK would not promote him. (ECF No. 61-1 at 24; see ECF No. 61-2). Meggs did not “give [Mr. Bryan] any other reasons why [MSK] would not promote [him]” and did not “reference any . . . medical problems [Mr. Bryan] had[.]” (ECF No. 61-1 at 24). Likewise, Ottey told Mr. Bryan that, because of the 2010 Report (which also did concern alleged disability discrimination), he was not going to promote him to the 2010 Lead Technician Position. (ECF No. 61-1 at 34). Finally, Mr. Bryan testified that Ottey “politely” denied him the 2012 Supervisor Position because MSK was “looking for someone with more experience.” (ECF No. 61-1 at 41-42).
Accordingly, the Court respectfully recommends that the Motion be GRANTED with respect to Mr. Bryan's failure to promote claim, because he has failed to establish that he was not promoted under circumstances giving rise to an inference of disability discrimination.
b. Failure to accommodate claim
Mr. Bryan claims that MSK failed to accommodate his disabilities by “denying [him] time off from work.” (ECF No. 2 at 9). MSK does not dispute-and, thus, concedes for purposes of the Motion-that Mr. Bryan can establish the first three elements of a failure to accommodate claim, i.e., that: (1) he is a person with a disability under the meaning of the ADA; (2) MSK is covered by the ADA and had notice of his disability; and (3) with reasonable accommodations, he could perform the essential functions of the job at issue (i.e., he is a “qualified individual”). Graves I., 457 F.3d at 184). MSK argues, however, that Mr. Bryan's failure to accommodate claim fails because the undisputed evidence shows that, after MSK encouraged him to request leave under the FMLA, Mr. Bryan cut off the interactive process. (ECF No. 60 at 22-24). Specifically, MSK claims that Mr. Bryan “declined to submit any documentation in support of the FMLA request and refused to entertain any accommodation beyond the unlimited use of vacation time outside [MSK]'s policies.” (ECF No. 60 at 23).
“Where the interactive process breaks down, a court should look for signs of good faith or bad faith, in assessing liability.” Thompson v. City of New York, No. 98 Civ. 4725 (GBD), 2002 WL 31760219, at *8 (S.D.N.Y. Dec. 9, 2002). “A party that obstructs the process is not acting in good faith[,] and “a party that fails to communicate, or withholds important information solely within the knowledge of that party, can be found to have obstructed the process in bad faith.” Id. “‘[S]teps toward engaging in an interactive process' include ‘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 employee's request, and offering and discussing available alternatives when the request is too burdensome.'” Malzberg v. New York Univ., No. 19 Civ. 10048 (LJL), 2022 WL 889240, at *15 (S.D.N.Y. Mar. 25, 2022) (quoting Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 218-19 (2d Cir. 2001)).
“[T]he interactive process is not required when the end it is designed to serve- reasonable accommodation-has already been achieved.” Noll v. Int'l Bus. Machines Corp., 787 F.3d 89, 98 (2d Cir. 2015) (citing Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir.2000) (“To hold employers liable for the failure of an interactive process regardless of whether a reasonable accommodation was made would not serve the underlying purposes of the ADA, and would, contrary to our own precedent, elevate the ADA's interactive process requirement to an end in itself.”)). “Although ‘[t]he reasonableness of an employer's accommodation is a ‘factspecific' question that often must be resolved by a factfinder,' where an ‘employer has already taken (or offered) measures to accommodate the disability, the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is ‘plainly reasonable.'” Wells, 2021 WL 810220, at *11 (quoting Noll, 787 F.3d at 94). “If the proposed accommodation is ‘plainly reasonable,' then ‘[t]here is no need to engage in further burden-shifting to consider whether the employee's requested accommodation would have been reasonable.'” Id. (quoting Noll, 787 F.3d at 94). “An employer is “not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee.” Noll, 787 F.3d at 95. “Rather, ‘[t]he hallmark of a reasonable accommodation is effectiveness.'” Wells, 2021 WL 810220, at *11 (quoting Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 189 (2d Cir. 2015)).
The Court agrees with Defendants that summary judgment is warranted as to Mr. Bryan's failure to accommodate claim. It is undisputed that MSK advised Mr. Bryan of his right to request FMLA leave on a continuous or intermittent basis. (ECF No. 59 ¶ 44; see ECF No. 61-1 at 18, 6063). Mr. Bryan also does not dispute that the FMLA leave he was offered would have reasonably accommodated his disability. (See ECF No. 67). Indeed, Mr. Bryan admitted at his deposition that he “never used [FMLA leave] before.” (ECF No. 61-1 at 62). “[S]everal courts in this Circuit have found that intermittent leave can constitute a reasonable accommodation in certain contexts.” Bernheim v. New York City Dep't of Educ., No. 19 Civ. 9723 (VEC) (JLC), 2021 WL 2619706, at *12 (S.D.N.Y. June 25, 2021) (collecting cases), adopted by, 2021 WL 4198126 (S.D.N.Y. Sept. 15, 2021); see Rinaldi v. Quality King Distributors, Inc., 29 F.Supp.3d 218, 228 (E.D.N.Y. 2014) (“For an employee whose primary difficulty was itself being at work, time off and reduced hours were logical, reasonable accommodations.”). Mr. Bryan never pursued MSK's invitation to apply for FMLA leave, electing instead to continue attempting to use his accrued vacation days. (ECF No. 61-1 at 17-19, 60-62, 69). He does not argue, let alone provide any evidence to suggest, that FMLA leave was not a reasonable accommodation under the circumstances. In fact, Mr. Bryan conceded that he preferred an effectively identical accommodation, i.e., use of his accrued vacation and sick time to cover his absences. (See ECF No. 61-1 at 68-69 (‘”I will go to a doctor and schedule stuff immediately, get myself in, get the treatment I need, stay home, rest up, [and] come back to work in a better shape. It's that simple. If I'm able to access my time, I can make things happen.”). “Because the undisputed facts construed most favorably to [Mr. Bryan] demonstrate that [he] was responsible for the parties' breakdown in the interactive process, summary judgment is” warranted. Julius v. Dep't of Hum. Res. Admin., No. 08 Civ. 3091 (PKC), 2010 WL 1253163, at *11 (S.D.N.Y. Mar. 24, 2010) (granting summary judgment where “the defendant offered to accommodate the plaintiff, and . . . [n]othing in the record indicate[d] follow-up action by the plaintiff”); see Nugent, 303 Fed.Appx. at 946 (affirming grant of summary judgment to defendant as to failure to accommodate claim where “the record clearly show[ed] that [the defendant] agreed to the accommodation” and that “its failure to come to pass was attributable to [the plaintiff]'s own failure”); Donofrio v. New York Times, 2001 WL 1663314, at *7 (S.D.N.Y. Aug.24, 2001) (recommending grant of summary judgment for employer where evidence showed that employee stopped “working toward an accommodation of his disability”), adopted by, 2002 WL 230820 (S.D.N.Y. Feb. 14, 2002).
Construing the evidence in his favor, Mr. Bryan could argue that MSK caused the interactive process to break down by failing to respond to his request to use his accrued vacation days and sick leave to cover his absences for medical appointments. As noted above, Mr. Bryan told MSK that, rather than apply for FMLA leave, he preferred to use his accrued paid vacation and sick leave, but that MSK “avoided the topic of [his] vacation time.” (ECF No. 61-1 at 67-69). Even if the Court construes this testimony as reflecting Mr. Bryan's counterproposal to MSK, however, it does not save Mr. Bryan's failure to accommodate claim. At most, Mr. Bryan's apparent “objections to [MSK's] accommodations largely pertain to [his] personal preferences, [i.e., his desire to be paid during his absences,] rather than any medical necessities.” Wells, 2021 WL 810220, at *17. The law is clear, however, that “[w]hile [a] Plaintiff may have preferred a different accommodation, ‘employers are not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee.'” Tafolla v. Cnty. of Suffolk, No. 17-CV-4897 (JS) (AKT), 2021 WL 3675042, at *6 (E.D.N.Y. Aug. 19, 2021) (quoting Noll, 787 F.3d at 95); see 29 C.F.R. § 1630 app. (“[T]he employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.”). Thus, “[b]ecause [MSK] provided reasonable accommodation to [Mr. Bryan], any failure to engage in an interactive process-even if supported by the record-did not give rise to a discrimination claim.” Noll, 787 F.3d at 98.
Accordingly, the Court respectfully recommends that the Motion be GRANTED with respect to Mr. Bryan's failure to accommodate claim because the undisputed evidence shows that Defendants made reasonable efforts to offer Mr. Bryan an accommodation, and Mr. Bryan caused the interactive process to break down.
c. Discriminatory discharge claim
Mr. Bryan claims that MSK terminated him because of his disability. (ECF No. 2 at 5). Defendants argue that Mr. Bryan's discriminatory discharge claim fails because (i) he cannot establish a prima facie claim, specifically because he cannot show his termination occurred under circumstances giving rise to an inference of discrimination; (ii) MSK had legitimate, non-discriminatory reasons for its decision to terminate Mr. Bryan's employment; and (iii) Mr. Bryan fails to establish that MSK's legitimate, non-discriminatory reasons were pretext for disability discrimination. (ECF No. 60 at 19-22). The Court addresses each argument in turn.
i. Prima facie case
As discussed above (see § III.B.2.a supra), “[a]n employer takes action because of disability where he acts based on conduct caused by the handicap.” Smith, 286 F.Supp.3d at 528. “Failure to consider the possibility of reasonable accommodation for [an employee's known] disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.” Borkowski, 63 F.3d at 143; see Parker v. Sony Pictures Ent., Inc., 260 F.3d 100, 107 (2d Cir. 2001) (“[F]iring an employee because of performance-related deficiencies (such as failure to return to work at the end of a period of leave), where those deficiencies were themselves caused by failure to provide a reasonable accommodation, provides the requisite causal connection between a disability and an adverse employment action to support ADA liability as discrimination ‘because of disability.'”) (emphasis added) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d Cir. 2000) (“Parker I”)).
The Court agrees with Defendants that Mr. Bryan's prima facie discriminatory discharge claim fails because he has not shown that MSK terminated his employment under circumstances giving rise to an inference of discrimination. He does not dispute that MSK terminated his employment due to excessive unscheduled absences. (ECF No. 59 ¶¶ 33-51). Mr. Bryan did not-and cannot-establish, however, that those absences were the result of MSK's “[f]ailure to consider the possibility of reasonable accommodation[.]” Borkowski, 63 F.3d at 143. To the contrary, as discussed above (see § III.B.2.a supra), Mr. Bryan admitted that, after he “went to HR to report that [he] wasn't getting time off from work” and to request “access to [his] vacation time” (ECF No. 61-1 at 65-66), an MSK HR representative encouraged him to request intermittent FMLA leave and, out of “concern for [his] well-being[,]” initiated an FMLA leave application on his behalf. (Id. at 64; see ECF No. 61-6). Ottey also advised Mr. Bryan of his right to request leave under the FMLA, on either a continuous or intermittent basis. (ECF No. 59 ¶ 44). Mr. Bryan never completed the application for FMLA leave because he believed he should be able to use his sick time and vacation time instead. (ECF No. 61-1 at 17, 69). He then incurred more unscheduled absences, which resulted in his termination. (ECF Nos. 61-1 at 8, 76-77; 61-7). Mr. Bryan also conceded that “other employees [were] disciplined for unexcused absences.” (ECF No. 61-1 at 55-56).
Accordingly, given MSK's efforts to accommodate Mr. Bryan's disability, Mr. Bryan's rejection of those reasonable efforts, and Mr. Bryan's failure to adduce any evidence otherwise suggesting that his termination occurred under circumstances giving rise to an inference of discrimination, the Court finds that Mr. Bryan has failed to establish the causation element of his prima facie discriminatory discharge claim. See Gallagher v. Town of Fairfield, No. 3:10-CV-01270 JAM, 2015 WL 3453342, at *7 (D. Conn. May 29, 2015) (finding no reasonable juror “could infer animus from the [employer]'s failure to apply [the employee's] accrued sick leave prior to her termination” where the employer “had already been voluntarily paying the difference between her salary and her workers' compensation for over a year, and had continued to do so for an additional two months after being told that she could not work for the foreseeable future and that she was suing for discrimination”); c.f. Parker I, 204 F.3d at 338 (finding that a reasonable trier of fact could conclude that the defendant's decision to terminate the plaintiff based on performance inadequacies caused by disability was discriminatory where there was “evidence that [the defendant] declined to consider [the plaintiff]'s proposal of part-time work, despite his request for such an accommodation”); Mendillo v. Prudential Ins. Co. of Am., 156 F.Supp.3d 317, 343 (D. Conn. 2016) (“Since there is a genuine issue of material fact concerning whether [the employer] failed to accommodate [the employee]'s disability, . . . this disputed fact may support an inference that she was fired because of her disability, satisfying her prima facie case and shifting the burden to [the employer].”); Morse v. JetBlue Airways Corp., 941 F.Supp.2d 274, 306 (E.D.N.Y. 2013) (denying summary judgment on discriminatory discharge claim where employee “produced sufficient evidence for a reasonable jury to find that [employer] failed to adequately consider [employee]'s accommodation requests”).
The Court notes that, in addition to claiming his discharge was discriminatory, Mr. Bryan alleges generally that MSK “provided [him] with terms and conditions of employment different from those of similar employees.” (ECF No. 2 at 2). To the extent Mr. Bryan asserts a disparate treatment claim based on MSK's failure to promote him, the Court finds that, for the reasons set forth above, no reasonable juror could conclude that his non-promotion was based on disability discrimination. (See § III.B.2.a supra). As Defendants correctly argue, Mr. Bryan has therefore failed to establish a prima facie disparate treatment claim under the ADA “because he has failed to identify any adverse action or any way in which he was treated differently on the basis of” his disability. (ECF No. 60 at 18-19)
ii. Legitimate, non-discriminatory reasons
Defendants argue that, even if Mr. Bryan could establish a prima facie claim, summary judgment is warranted as to his discriminatory discharge claim because MSK had legitimate, non-discriminatory reasons to terminate his employment, i.e., his excessive absences in violation of MSK's policies. (ECF No. 60 at 20-21).
“An employer's ‘explanation of its reasons must be clear and specific in order to afford the employee a full and fair opportunity to demonstrate pretext.'” Vives v. N.Y.C. Dep't of Corr., No. 15-CV-06127 (MKB), 2019 WL 1386738, at *12 (E.D.N.Y. Mar. 27, 2019) (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 105 (2d Cir. 2001) (internal citation omitted)). “[U]nder the ADA, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment, even when such misconduct is related to a disability.” McElwee v. Cnty. of Orange, 700 F.3d 635, 641 (2d Cir. 2012) (collecting cases). The Court “need not be persuaded that [the employer's proffered reasons] were the [employer]'s true motives; rather, the [employer] need only produce evidence which, if true, would permit the conclusion that there was a non-discriminatory reason for the adverse [employment action].” Mescall v. Marra, 49 F.Supp.2d 365, 375 (S.D.N.Y. 1999). “Therefore, to defeat [MSK]'s motion for summary judgment, [Mr. Bryan] must produce sufficient evidence to support a rational finding that the reasons proffered by [MSK] were false, and that more likely than not, [his] disability was the real reason for” his termination. Id.
The Court agrees with Defendants that, even if he could establish a prima facie case of discriminatory discharge, Mr. Bryan's excessive unscheduled absences constituted a legitimate, non-discriminatory reason for MSK to terminate his employment. See Best v. Drugs, No. 14-CV-2648 (CM), 2017 WL 218251, at *5 (S.D.N.Y. Jan. 11, 2017) (finding employer articulated legitimate non-discriminatory reasons under the ADA to terminate employee in light of “[t]he well-documented history of Plaintiff's absences and tardiness was in violation of Defendant's attendance policy, and the policy clearly stated that violations could result in termination), aff'd, 715 Fed.Appx. 95 (2d Cir. 2018); Welsh v. Rome Mem'l Hosp., Inc., No. 614CV1423DNHATB, 2016 WL 6603216, at *4 (N.D.N.Y. Nov. 8, 2016) (granting summary judgment on ADA claim and finding that “unauthorized absences, which the plaintiff attributed to “the side effects of medication he was taking for his [disability],” constituted legitimate, non-discriminatory reason not to re-hire the plaintiff); Edwards v. Elmhurst Hosp. Ctr., No. 08-CV-3686(RRM)(LB), 2010 WL 11623370, at *8 (E.D.N.Y. Sept. 21, 2010) (finding that a plaintiff's “failure to follow sick leave protocol” constituted legitimate non-discriminatory reason for adverse employment action); Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 584 & n. 123 (S.D.N.Y. 2008) (finding that “chronic absenteeism” constitutes legitimate, non-discriminatory reason for termination, and noting that “[t]he ADA does not require employers to tolerate chronic absenteeism even when attendance problems are caused by an employee's disability”); Jackson v. Nor Loch Manor Healthcare Facility, 297 F.Supp.2d 633, 636 (W.D.N.Y. 2004) (“an employer is entitled to discharge an employee who fails to follow company rules and fails to appear for work without notification, even if the absences are attributable to a medical problem”), aff'd 134 Fed.Appx. 477 (2d Cir. 2005).
The Court notes that Mr. Bryan appears to dispute the number of unscheduled absences that he accrued during his final year of employment. At his deposition, Mr. Bryan testified that “some” of the absences reflected in the Termination Letter were “probably vacation days.” (ECF No. 61-1 at 75; see also ECF No. 2 at 9 (alleging that Defendants' “claims of large amounts of callouts are mixed in with normal vacation days across several years”); ECF No. 61-1 at 75 (denying that he had 13 “unscheduled” absences in the year preceding his employment)). In his Response, Mr. Bryan claims that, after the Second Final Written Warning, he “called out” once, not four times. (ECF No. 67 at 3). Even if the precise number of absences is off slightly, however, he does not dispute most of the absences reflected in the Termination Letter, or that he incurred at least ten unscheduled absences during that period. In any event, “[i]n a discrimination case, however, [courts] are decidedly not interested in the truth of the allegations against plaintiff.” McPherson v. New York City Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006). Rather, courts “are interested in what ‘motivated the employer[.]'” Id. (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). Here, MSK has produced evidence that, “if true, would permit the conclusion that there was a non-discriminatory reason for the adverse [employment action].” Mescall, 49 F.Supp.2d at 375.
iii. Pretext
Defendants argue that Mr. Bryan “offers no evidence to show that [MSK]'s legitimate reason for his termination is pretext for disability discrimination.” (ECF No. 60 at 21).
“Under the ADA, a plaintiff must show that discrimination was the but-for cause of the adverse action taken against him.” Bourara v. N.Y. Hotel Trades Council & Hotel Ass'n of N.Y.C, Inc., Emp. Benefit Funds, No. 20-3092, 2021 WL 4851384, at *1 (2d Cir. Oct. 19, 2021) (citing Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019)). “Thus, to survive summary judgment, [Mr. Bryan] must show that a jury could reasonably conclude that [MSK] would not have [terminated his employment] if he . . . did not have a disability.” Morrison v. Millenium Hotels, No. 18 Civ. 6811(VEC), 2021 WL 1534293, at *4 (S.D.N.Y. Apr. 19, 2021); see Wein v. New York City Dep't of Educ., No. 18 Civ. 11141 (PAE), 2020 WL 4903997, at *15 (S.D.N.Y. Aug. 19, 2020) (“In an ADA . . ., a plaintiff satisfies that burden by adducing evidence sufficient to show by a preponderance that the employer's purported reasons for its actions are mere pretext, and that discrimination was the real but-for cause of any adverse employment actions.”).
Having conducted a thorough review of the record, the Court finds that, even if Mr. Bryan could establish a prima facie case of discriminatory discharge, summary judgment is still warranted as to this claim because no reasonable jury could conclude that his disability was the but-for cause of his termination. As discussed above, Mr. Bryan does not dispute that he accrued at least ten unscheduled absences during the final year of his employment. (See § III.B.2.c.ii, supra). Moreover, Mr. Bryan acknowledged that “all of” CPD's functions are important to patient care at MSK, because “if you don't sanitize objects properly . . . [y]ou could pass on . . . some kind of infection to the patient.” (ECF No. 61-1 at 15-16). Mr. Bryan also agreed that “fully staffed and competently trained staff is important” to the CPD's successful operation, (id. at 17), and that “an unscheduled absence would increase the workload” of his coworkers in the CPD. (Id. at 19). Likewise, Mr. Bryan acknowledged that he aware of the Sick Time Policy and that excessive use of sick time could result in termination. (ECF No. 59 ¶ 33). When Mr. Bryan approached MSK arguably to request an accommodation, MSK attempted to accommodate Mr. Bryan's disability by encouraging him to apply for FMLA leave. (ECF No. 61-1 at 64-66; see ECF No. 61-6). Mr. Bryan declined that offer, and was terminated after he continued to accrue unscheduled absences. (ECF No. 61-1 at 8; see ECF No. 61-7). Mr. Bryan “has put forward no evidence to suggest that [MSK's] rationale was pretext for unlawful disability discrimination, and no reasonable jury could conclude that [MSK] terminated [Mr. Bryan] because of” his disability. Best, 2017 WL 218251, at *5.
Accordingly, the Court respectfully recommends that the Motion be GRANTED as to Mr. Bryan's discriminatory discharge claim.
Mr. Bryan's 2014 Complaint did not appear to include a retaliation claim. (See ECF No. 61-3 at 2 (noting that Mr. Bryan “charged that Respondents failed to accommodate his disability, terminated his employment, and altered the terms, conditions, and privileges of his employment based on his disability”)). As a result, the Court is unable to determine whether Mr. Bryan exhausted his administrative remedies with respect to that claim. See 42 U.S.C. § 12117(a) (providing that ADA employment discrimination procedures shall include those set forth at 42 U.S.C. § 2000e-5(e), which require plaintiffs to file a charge with the EEOC or analogous state agency prior to bringing filing an ADA claim in court). Defendants did not, however, raise Mr. Bryan's failure to exhaust as an affirmative defense in their Answer (ECF No. 14) or in the Motion. (ECF No. 57). Accordingly, “[t]he Court finds that Defendants have waived [any] objection to [Mr. Bryan]'s failure to exhaust” his retaliation claim. Bowen-Hooks v. City of New York, 13 F.Supp.3d 179, 203 (E.D.N.Y. 2014) (collecting cases).
Defendants argue that they are entitled to summary judgment as to Mr. Bryan's retaliation claim because he never engaged in activity protected by the ADA. (ECF No. 60 at 2425). Mr. Bryan did not specifically respond to this argument in his Response. (See ECF No. 67).
“Protected activity is action taken to protest or oppose statutorily prohibited discrimination.” Shannon v. Credit Agricole Sec. (USA), Inc., No. 17 Civ. 667 (AJN), 2021 WL 1063183, at *9 (S.D.N.Y. Mar. 19, 2021) (citation omitted). Under the ADA, “[p]rotected activities include requests for reasonable accommodations.” Wells, 2021 WL 810220, at *11 (citing Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 149 (2d Cir. 2002)). To demonstrate a causal connection between protected activity and a subsequent adverse employment action, “proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).
The Court agrees with Defendants that summary judgment is warranted with respect to Mr. Bryan's retaliation claim. As MSK points out, Mr. Bryan's own allegations and testimony directly undermine this claim, as he has repeatedly suggested that MSK retaliated against him for activities that are not protected by the ADA, namely his filing of the 2002 Complaint, which did not implicate his disability. (See ECF No. 2 at 5 (“This all began because of a prior claim brought against [MSK] by me with the [NYCCHR].”); id. at 9 (“I was told by managers that I would never be promoted because the[y] did not [want] the workers seeing anyone suing them and benefiting from it.”); ECF No. 61-1 at 57 (Mr. Bryan testifying that he believed MSK retaliated against him for filing the 2002 Complaint); see also ECF No. 67 at 8, 24 (claiming that his co-worker Bailey resigned from her Instrument Specialist position “when she was retaliated against by manager Hector Ottey and supervisor Rupert Gillete [sic] for complaining about the same problems I complained about[,]” specifically “the working conditions, hatred towards Jamaicans, HOSTILE environment, [and the] refusal by supervisor Rupert Gillette to give her assistance with heavy duties”)). As a result, based on Mr. Bryan's own testimony, it is undisputed that MSK did not retaliate against him for engaging in ADA-protected activity, and, therefore, he has not made out a prima facie claim. See Shannon v. Credit Agricole Sec. (USA), Inc., No. 17 Civ. 667 (AJN), 2021 WL 1063183, at *9 (S.D.N.Y. Mar. 19, 2021) (granting summary judgment to defendant as to ADA retaliation claim where there was “no genuine dispute that Plaintiff did not ‘protest or oppose statutorily prohibited' discrimination in” a complaint submitted to his employer).
“The Court need not engage in the remainder of the McDonnell Douglas burden-shifting analysis, since [Mr. Bryan]'s retaliation claim[] . . . fail[s] as a matter of law.” Thompson v. Spota, No. CV142473JMAAKT, 2018 WL 6163301, at *32 (E.D.N.Y. Aug. 23, 2018), adopted by, 2018 WL 4771901 (E.D.N.Y. Sept. 30, 2018). Nonetheless, drawing all reasonable inferences in Mr. Bryan's favor, the Court notes that Mr. Bryan's reporting to HR “that [he] wasn't getting time off from work” and requesting “access to [his] vacation time” arguably constituted a request for a reasonable accommodation and, thus, protected activity under the ADA. (ECF No. 61-1 at 6566). But even if Mr. Bryan had raised this argument, his retaliation claim still would not survive summary judgment for two reasons. First, the undisputed evidence does not support a causal connection between this protected activity, which occurred on March 4, 2013 (see ECF No. 61-6 at 3), and Mr. Bryan's termination, which occurred 16 months later, on July 15, 2014. (ECF No. 61-1 at 8; see ECF No. 61-7). “That temporal gap is too attenuated to support a causal inference.” Akinde, 2022 WL 955442, at *12 (granting summary judgment to defendant on ADA retaliation claim based on 18-month gap between protected activity and adverse employment action); see D'Alessio v. Charter Commc'ns, LLC, No. 18-CV-2738 (NG) (LB), 2020 WL 5638721, at *7 (E.D.N.Y. Sept. 21, 2020) (“[A] temporal gap of over a year is too attenuated to support a causal inference.”); Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306, 314 (2d Cir. 2005) (finding no causation where more than a year passed between protected activity and adverse action). Second, and in any event, no reasonable trier of fact could conclude that MSK's decision to terminate Mr. Bryan was pretextual retaliation for his requested ADA accommodation. As discussed above, in response to Mr. Bryan's request, MSK attempted to provide Mr. Bryan with an accommodation by encouraging him to apply for FMLA leave, which Mr. Bryan declined to do. (ECF Nos. 59 ¶ 44; 61-1 at 17, 64, 69).
Accordingly, the Court respectfully recommends that the Motion be GRANTED as to Mr. Bryan's retaliation claim.
e. Hostile work environment claim
As set forth above, to establish a hostile work environment claim, Mr. Bryan must show that (i) “the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of . . . [his] work environment,” and (ii) the harassment was based on his disability. Harvin, 767 Fed.Appx. at 128. (See § III.A.2.b, supra). Defendants argue they are entitled to summary judgment on Mr. Bryan's hostile work environment claim because “at this deposition, [Mr.] Bryan made it clear that he was never subjected to a hostile work environment on the basis of his disability.” (ECF No. 60 at 25).
The court agrees with Defendants that no reasonable juror could conclude that Mr. Bryan could establish a hostile work environment claim under the ADA. Mr. Bryan points to no evidence indicating that any MSK employee subjected him to negative treatment based on his disability, much less that, as a result, “the conditions of [his] employment altered for the worse.” Terry, 336 F.3d at 148; see Rasmy, 952 F.3d at 387 (relevant factors in assessing hostile work environment include “whether [alleged misconduct] unreasonably interferes with the victim's [job] performance”). Even if he had identified conduct that was sufficiently severe or pervasive, Mr. Bryan offers no evidence to show that his disability was the basis for such conduct. See Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002) (holding that plaintiff asserting hostile work environment must link the hostile conduct to her protected class). Rather, as MSK points out the undisputed evidence shows the opposite: at his deposition, Mr. Bryan admitted that he was “[n]ever harassed on the basis of any sort of disability.” (ECF No. 61-1 at 46). Indeed, Mr. Bryan has not even shown how a reasonable juror could conclude that any “[f]acially neutral incident” was in fact based on his disability. Alfano, 294 F.3d at 378. In short, the Court concludes that there is “simply no nexus between [any] alleged hostility and [Mr. Bryan's] disability.” Sosa v. N.Y. Div. of Human Rights, No. 11 Civ. 5155 (NGG) (VVP), 2015 WL 5191205, at *12 (E.D.N.Y. Sept. 4, 2015).
Accordingly, the Court respectfully recommends that Defendants' Motion be GRANTED as to Mr. Bryan's hostile environment claim.
IV.CONCLUSION
For the reasons set forth above, I respectfully recommend that MSK's Motion be GRANTED in its entirety.
Defendants shall promptly serve a copy of this Report and Recommendation on Mr. Bryan, and file proof of service on the docket.
The Clerk of the Court is respectfully directed to mail a copy of this Report and Recommendation to Mr. Bryan at the address below.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from 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. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Bryan does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2.