Opinion
INDEX No. 13-17883
09-10-2019
JILL COLEMAN, Plaintiff, v. TIME CAPITAL SECURITIES CORPORATION, Defendant.
RICOTTA & MARKS, P.C. Attorney for Plaintiff 31-10 37th Street Long Island City, New York 11101 GORDON REES LLP Attorney for Defendant One Battery Park Plaza, 28th Floor New York, New York 10004
COPY
SHORT FORM ORDER CAL. No. 18-00633OT PRESENT: Hon. DENISE F. MOLIA Acting Justice of the Supreme Court MOTION DATE 8-24-18
ADJ. DATE 9-21-18
Mot. Seq. # 002 - MG; CASEDISP RICOTTA & MARKS, P.C.
Attorney for Plaintiff
31-10 37th Street
Long Island City, New York 11101 GORDON REES LLP
Attorney for Defendant
One Battery Park Plaza, 28th Floor
New York, New York 10004
Upon the following papers numbered 1 to 37 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers 1 - 34; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers ___; Replying Affidavits and supporting papers 36 - 37; Other Defendant's Memoranda of Law; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion by defendant Time Capital Securities Corp. for summary judgment dismissing the complaint against is granted.
Plaintiff Jill Coleman commenced this action seeking damages for alleged violations of the New York State Human Rights Law ("NYSHRL"). Plaintiff is a former employee of defendant Time Capital Securities, Corp. ("TCS"), a small financial firm that provides securities brokerage services to individual investors. Plaintiff was employed by TCS from January 25, 1993 until May 24, 2012, when she allegedly was terminated in retaliation for complaining about discrimination in violation of the New York State Human Rights Law (Executive Law § 290, et seq.). Plaintiff alleges that TCS's officers and employees began discriminating against her on the basis of disability shortly after she informed them that she was diagnosed with kidney cancer, and subsequently underwent surgery to remove a malignant mass in November 2008. After returning to work in January 2009, plaintiff allegedly was permitted to use available and prospective vacation and sick time for post-surgery recovery, and for treatment for pain and other ongoing medical ailments, including a later-diagnosed case of rheumatoid arthritis. However, plaintiff alleges that, despite her continued exemplary job performance, she encountered a hostile work environment where she was subjected to increasing harassment regarding the utilization of sick days and vacation time, false accusations that she was abusing her pain medication and failing to meet her job requirements, requests by her supervisor for dialogue with her father, and her eventual termination following the delivery of a letter from her attorneys warning TCS that it was engaging in discriminatory and retaliatory conduct.
TCS joined issue providing its own counter statement of the facts and asserting various affirmative defenses, including defenses based on reasonable accommodation, non-retaliatory termination, and plaintiff's failure to mitigate damages. TCS now moves for summary judgment dismissing the complaint against it on the basis that it reasonably accommodated plaintiff's disability requests, that it possessed good-faith, non-discriminatory grounds to terminate her employment, and that plaintiff will be unable to show that she was subjected to abusive working conditions that were so severe or pervasive that they could be regarded as a hostile work environment. In support of the motion, TCS submits, inter alia, copies of the parties' deposition transcripts, copies of plaintiff's medical records, affidavits by plaintiff's supervisors and TCS' medical expert, Frank Dowling M.D., and various emails, corporate documents, and written communications. Plaintiff did not submit any papers in opposition to the motion.
To state a prima facie case of employment discrimination due to a disability under the NYSHRL, plaintiff must demonstrate that she suffered from a disability and that because she is disabled, was subjected to an adverse employment action ( Matter of Eniry v Landi , 84 NY2d 554, 620 NYS2d 328 [1994]; Timashpolsky v State Univ. of N.Y. Health Science Ctr. at Brooklyn , 306 AD2d 271, 761 NYS2d 94 [2d Dept 2003], lv denied 1 NY3d 507, 776 NYS2d 223 [2004]). Under the NYSHRL the term disability "means (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment" (Executive Law § 292 [21]). Therefore, "[f]airly read the statute covers a range of conditions varying in degree from those involving the loss of a bodily function to those which are merely diagnosable medical anomalies which impair bodily integrity and thus may lead to more serious conditions in the future" ( State Div. of Human Rights v Xerox Corp., 65 NY2d 213, 219, 491 NYS2d 106 [1985]; see also Hollandale Apts . & Health Club , LLC v Bonesteel , 173 AD3d 55, 100 NYS3d 711 [3d Dept 2019]). Thus, a diagnosis of cancer has been found to constitute a qualifying disability within the meaning of the statute (see Katz v Adecco United States , Inc., 845 F Supp 2d 539 [SD NY Jan 10, 2012]).
The standards for recovery under the NYSHRL are similar to the federal standards under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.), and New York courts look to federal cases for guidance (see Chiara v Town of New Castle , 126 AD3d 111, 2 NYS3d 132 [2d Dept 2015]). "In discrimination claims brought under the NYSHRL, NY Exec. Law § 296 et seq., the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v Green, 411 US 792 (1973), applies" ( Ferraro v Kellwood Co., 440 F3d 96, 99-100 [2d Cir 2006]). "That framework requires a plaintiff in a disability-discrimination case to establish a prima facie case of discrimination, after which the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action in question. Once the defendant provides such a reason, the plaintiff shoulders the burden of showing sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for discrimination" ( Ferraro v Kellwood Co., supra at 100). "Failure to accommodate is a type of disability discrimination that also follows the McDonnell Douglas burden-shifting scheme" ( Campbell v New York City Tr. Auth., 93 F Supp 3d 148 [ED NY Mar. 26, 2015]). "In order to make out a prima facie case for failure to accommodate, a plaintiff must show that (1) she is a person with a disability, (2) her employer is a covered entity, (3) the plaintiff could perform the essential functions of her job with an accommodation, and (4) the defendant refused to make such an accommodation" ( Campbell v New York City Tr. Auth., supra at 53, citing McBride v BIC Consumer Prods. Mfg. Co., Inc., 583 F3d 92, 96-97 [2d Cir 2009]). "Once the plaintiff has demonstrated that there is a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits, the defendant bears the burden of proving that the requested accommodation is not reasonable" ( McElwee v County of Orange , 700 F3d 635, 642 [2d Cir 2012]).
To establish a hostile work environment claim based on disability under the NYSHRL, a plaintiff must demonstrate that he or she is considered disabled under the statute; that he or she was the subject of harassment; that the harassment was based upon his or her disability; and that the harassment affected a term, condition or privilege of employment (see Wildman v Verizon Corp., 2009 US Dist LEXIS 2898 [ND NY Jan 14, 2009]; Ragusa v Teachers Ins. & Annuity Association-College Retirement Equities Fund , 1998 US Dist LEXIS 12697 [SDNY Aug. 17, 1998]). "A hostile work environment exists where 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" ( Chiara v Town of New Castle , 126 AD3d 111, 125, 2 NYS3d 132 [2d Dept 2015]; Nettles v LSG Sky Chefs , 94 AD3d 726, 730, 941 NYS2d 643 [2d Dept 2012]). The workplace must be evaluated on an objective and subjective basis, and courts can consider factors including the frequency of the conduct, its severity, and whether it was physically threatening or humiliating (see Quinn v Green Tree Credit Corp ., 159 F 3d 759 [2d Cir 1998]). Hostile work environment claims "are meant to protect individuals from abuse and trauma that is severe" and "are not intended to promote or enforce civility, gentility, or even decency" ( Curtis v DiMaio , 46 F Supp 2d 206, 213-14 [ED NY April 15,1999], affd 205 F3d 1322 [2d Cir 2000]). Thus, conduct that is merely offensive, but does not constitute an environment that a reasonable person would find abusive, is not conduct that constitutes a hostile work environment ( Leibovitz v New York City Tr. Auth., 252 F3d 179 [2d Cir 2001]; see also Skinner v City of Amsterdam , 824 F Supp 2d 317 [ND NY March 30, 2010][hostile work environment claim dismissed on the basis co-worker comments regarding plaintiff's alleged drug addiction fell short of altering his work conditions or creating a hostile work environment]).
Retaliation claims under NYSHRL are also governed by the standard set forth by the Supreme Court in McDonnell Douglas Corp. v Green (see McGuire-Welch v House of the Good Shepherd's Tilton Sch ., 720 Fed Appx 58 [2d Cir 2018]; Widomski v State Univ. of N.Y. (SUNY) at Orange , 748 F 3d 471, 476 [2d Cir 2014]). A plaintiff asserting a retaliation under NYSHRL must show that (1) he or she engaged in protected activity, (2) the employer was aware of this activity, (3) he or she was subjected to an adverse employment action, and (4) a causal connection existed between the adverse employment action and the protected activity (see Weixel v Board of Educ . of the City of N.Y., 287 F 3d 138, 148 [2d Cir 2002]). With respect to the causation element, the U.S. Supreme Court has also held that a plaintiff alleging a retaliation claim must show that retaliation was a 'but-for' cause of the adverse action, and not simply a 'substantial' or 'motivating' factor in the employer's decision (see University of Tex . Southwestern Med. Ctr. v Nassar , 570 US 338, 133 S Ct 2517 [2013]). Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action (see Sumner v United States Postal Serv ., 899 F 2d 203, 209 [2d Cir 1990]). Under the framework set forth in McDonnell Douglas Corp. v Green, the presumption of retaliation raised upon the establishment of a prima facie case is eliminated after the defendant has articulated a non-retaliatory reason for the adverse employment action (see Weinstock v Columbia Univ ., 224 F 3d 33, 42 [2d Cir 2000]). "For the case to continue, the plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason, is a mere pretext . . . [and produce ] sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that [discrimination] was the real reason for the [employment action]'" ( Weinstock v Columbia Univ., supra at 42, quoting Van Zant v KLM Royal Dutch Airlines , 80 F 3d 708, 714 [2d Cir 1996]).
At the outset, the court notes that TCS conceded, for the purposes of this motion, that plaintiff, who required surgery and post-surgical treatment related to the removal of a cancerous mass from her kidney, suffered from a disability under Executive Law § 296 [1] [a] (see Katz v Adecco United States , Inc., 845 F Supp 2d 539 [SD NY Jan 10, 2012]). However, as plaintiff admitted that TCS granted her paid two-month medical leave to undergo and recover from her surgical procedure, and allowed her, except for a few occasions when she was asked to reschedule due to staffing issues or make lunch hour appointments, to attend all her follow-up doctors' appointments, the court finds that TCS established, prima facie, that it reasonably accommodated plaintiff's disability (see Quadir v New York State Dept . of Labor , 691 Fed Appx 674 [2d Cir 2017]; Guess v University of Rochester , 2015 US Dist LEXIS 108196 [WD NY August 17, 2015]; McPherson v City of New York , 2011 US Dist LEXIS 108804 [SD NY September 23, 2011]; Burke v Seitz , 2006 US Dist LEXIS 96026 [ND NY January 24, 2006]). Plaintiff, who failed to submit any papers in opposition to the motion, failed to raise any triable issue warranting denial of the motion (see Alvarez v Prospect Hosp ., 68 NY2d 320, 508 NYS2d 923 [1986]; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]). Therefore, the unopposed branch of TCS' motion for summary judgment dismissing plaintiff's claim based on an alleged failure to accommodate her disability is granted.
TCS also demonstrated its prima facie entitlement to summary judgment dismissing plaintiff's hostile work environment claim by submitting evidence that she was not subjected to abusive work conditions that were so pervasive, severe, or work altering, that it created a hostile working environment (see Leibovitz v New York City Transit Auth ., supra; Lawson v Homenuk , 710 Fed Appx 460 [2d Cir 2017]; Skinner v City of Amsterdam , supra). Significantly, plaintiff alleges that her work environment deteriorated after she returned from surgery due to continuous accusations by her supervisors that she was addicted to pain management medication and was no longer able to perform her work effectively due to such addiction. Plaintiff recalled one meeting she had with one of TCS's partners, Alex Rohman, where he told her that her use of pain medication was causing her to become a liability to TCS, and warned her that he would take her off the trading desk if he found out that she was taking medications that had "warning labels" on them. Plaintiff also describes a meeting she had with Richard Rohman, in which he alleged that her pain medication was causing her to become "loopy," "loud," and "chatty," that physicians told him that such behaviors were a sign of addiction, and that he feared other staff would be called upon to drive her home if she came to the office while under the influence of prescription pain killers. Plaintiff testified that Richard Rohman insisted that she let him speak with her father because he was concerned that she would overdose, that he pressured her until she finally relented, and that someone from TCS had called her mother and raised the fear that plaintiff had overdosed on an occasion when she overslept and could not be reached by phone.
Notwithstanding plaintiff's allegations of mistreatment, her own testimony indicates that such mistreatment fell far short of altering the conditions of her employment or creating the type of abuse and trauma associated with a hostile working environment. Plaintiff alleges only isolated incidents of purported mistreatment by her supervisors, and her testimony indicates that the comments or reprimands expressed were infrequent, mild, and often made in relation to incidents of declining performance or tardiness (see La Marca-Pagano v Dr . Steven Phillips , P.C., 129 AD3d 918, 12 NYS3d 192 [2d Dept 2015]; Chiara v Town of New Castle , supra). During her deposition testimony, plaintiff admitted that she continued working at the trading desk for years after she returned from surgery - despite making what she regarded as minor or explainable trading errors - until she told her immediate supervisor, Yvonne James, that she found it overwhelmingly difficult to learn how to use advanced Excel spreadsheets or perform block trading on the new block trading system being adopted by TCS. Additionally, plaintiff admitted she overslept and arrived late for work because an Ambien tablet got stuck in her throat, and that she continuously struggled to wean herself off daily consumption of various addictive prescriptions. While drug addiction may qualify as a disability under certain circumstances (see Gilmore v University of Rochester Strong Memorial Hosp . Div., 384 F Supp 2d 602 [WD NY August 22, 2005]), it does not appear that plaintiff has alleged such a disability in her complaint. Even assuming, arguendo, that the complaint could be construed to allege such a disability, inasmuch as TCS has submitted an expert affidavit by Frank Dowling, M.D., who concludes, after reviewing the parties' testimony, as well as plaintiff's medical and prescription records, that plaintiff was likely addicted to her pain medication at the time of her dismissal, she would not be entitled to such disability protection under the statute (see Gilmore v University of Rochester Strong Memorial Hosp . Div., supra; Teahan v Metro-North Commuter R .R. Co., 951 F 2d 511 [2d Cir 1991]). As a result, the unopposed branch of TCS' motion for summary judgment dismissing plaintiff's claim that she was subjected to a hostile work environment is granted.
Finally, the court also grants the unopposed branch of the motion for summary judgment dismissing plaintiff's retaliatory termination claim. TCS demonstrated its entitlement to dismissal of plaintiff's retaliation claim by submitting evidence that a steady decline in plaintiff's ability to perform the essential functions of her job rather than retaliation for her allegation of discrimination provided a legitimate, nondiscriminatory reason for her dismissal (see Gilmore v University of Rochester Strong Memorial Hosp . Div., supra; Diello v Potter , 697 F Supp 2d 410 [WD NY March 16, 2010]; Misek-Falkoff . Int'l Bus. Machs. Corp., 854 F Supp 215 [SD NY 1994]; Krasner v City of New York , 2013 US Dist LEXIS 136534 [SD NY September 23, 2013]; Woodard v Monticello Cent. Sch. Dist., 2008 US Dist LEXIS 97184 [SD NY December 1, 2008]; Johnson v St. Clare's Hosp. & Health Ctr., 1998 US Dist LEXIS 5976 [SD NY April 30, 1998]). As discussed above, plaintiff admitted to instances of tardiness, absenteeism, trading errors, and the inability to adapt to new working techniques, during the four year period that followed her kidney surgery. Plaintiff's supervisors provide detail testimony regarding this decline, testifying that despite their accommodation of plaintiff's surgery and recovery in 2008, that she made costly trading errors, began reporting to work after the trading market opened, refused to learn their new trading system, and displayed an increasing inability to meet the needs of their clients. Plaintiff's immediate supervisor, Yvonne James, explained that plaintiff's refusal to learn the new trading system was significant, because the new technique permitted TCS to perform specific multiple trades for many clients simultaneously, permitting them to make quicker trades, and save themselves and clients money. James testified that plaintiff had grown used to making such trades manually, and that she averaged the cost of the trade to each client, which had become unacceptable to TCS. James further testified that she stayed late on multiple occasions fixing plaintiff's errors or completing her work, that it appeared that things that were once familiar to plaintiff now were unfamiliar, and that she found plaintiff's increasingly talkative and loud behavior disruptive to the whole office. Plaintiff, who failed to submit any papers in opposition, failed to raise triable issues as to whether TCS's termination of her services were false and pre-textual (see Jackson v New York City Dept . of Educ., 768 Fed Appx 16 [2d Cir 2019]; Weinstock v Columbia Univ., supra). Dated: 9-10-19
/s/_________
A.J.S.C.