Opinion
121997/03.
Decided September 9, 2004.
This motion to dismiss a claim of disability discrimination brings up for consideration the pleading standards to be applied when there is an issue of an employer's obligation to provide "reasonable accommodation" to workers recovering from an extended illness or suffering mental impairment and such employee, after termination of employment, raises a claim under Executive Law § 291, et seq. ("New York State Human Rights Law" or "NYHRL"), and the Administrative Code of the City of New York § 8-107, et seq. ("NYC Administrative Code").
Defendant First Manhattan Co. ("First Manhattan") moves to dismiss and urges that the disability discrimination claims brought by a former employee, plaintiff Gina Raisley, are not cognizable because of her failure to properly plead that she could have returned to work had it made "reasonable accommodation" for her disability and that her harassment claims are facially insufficient. For the reasons stated below, the court determines that the complaint, which lacks any allegation that plaintiff was able to perform her job in a reasonable manner upon provision of reasonable accommodation of her disability, or that defendant engaged in impermissible harassment on the basis of her disability, fails to state a cognizable cause of action. Plaintiff is given leave, should she be so advised, to move to replead the claims asserting discriminatory discharge, consistent with the pleading standards applicable to a disability discrimination claim under the NYHRL, as amended effective January of 1998, to incorporate the "reasonable accommodation" provisions of the federal Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et seq.
Factual Allegations
Plaintiff alleges that, after providing exemplary service to her employer for almost fifteen years, she suffered a series of physical, medical and mental conditions which prevented her from coming to work for over a year. In January of 2002, plaintiff was diagnosed with Epstein Barr virus and took a six-month leave of absence under the employer's short-term disability coverage.
During that period, extensive diagnostic testing procedures revealed that she had two large masses on her liver and abdomen which required immediate removal. In June of 2002, plaintiff underwent surgery, which revealed that the masses were benign.
Plaintiff alleges that her supervisor called her several times during her leave demanding to know when she would return to work, that he sounded agitated, and that his calls aggravated her condition and increased her anxiety, which prevented her from returning to work (complaint, paras. 12-14, 18, 20-22, 24). She states that, on one occasion in October of 2002, following such a conversation, she experienced stress-related palpitations and went to the hospital.
Thereafter, plaintiff avers she called a general partner of First American, to tell him that she was still feeling ill, was under a physician's care, and was unable to return to work; during this conversation, she told him of the "harassing" phone calls she had received from her supervisor ( id., paras. 27-28), and there is no allegation that the supervisor made any calls to plaintiff subsequently. In November of 2002 and in early January of 2003, plaintiff represents she again called the general partner to inform him she still was unable to return "to work at that time" ( id., para. 29; affidavit, paras. 36, 38 [emphasis deleted]).
On or about February 14, 2003, plaintiff received a letter from First Manhattan informing her that her employment was being terminated effective March 31, 2003, because she had qualified for long-term disability coverage under the company policy. Defendant advised plaintiff that her health care coverage would be continued through the effective date of termination, that she would be eligible for COBRA coverage thereafter, and that "in lieu of any severance payments" it would waive repayment of $8,400 advanced to her in anticipation of her qualifying for long-term disability. Plaintiff was invited to contact the firm in the event her status changed and she was able to return to full or part-time employment (motion, exhibit B).
1.Defendant's assertions concerning the terms of the company's disability policies are unsupported by any record evidence but neither are they in clear dispute. It appears that, under the disability policy, the employer did not regard absenteeism as grounds for dismissal for qualifying employees ( compare Giaquinto v. New York Telephone, 135 A.D.2d 928 [3d Dept. 1987], plaintiff discharged because of excessive absenteeism in job that required good attendance could not claim disability discrimination, although absences were related to disability; Matter of Silk v. Huck Installation, 109 A.D.2d 930 [3d Dept. 1985], plaintiff's "disability did prevent her from doing her job in a reasonable manner since it caused her to miss an unacceptably high number of days of work in a job that required consistently good attendance"; Matter of Halpin v. State Human Rights Appeal Bd., 65 A.D.2d 898 [3d Dept. 1978]).
Plaintiff alleges that defendant's termination of her employment while she was in recuperation constituted unlawful discrimination on account of disability, in violation of the NYHRL, and the substantively similar provisions of the NYC Administrative Code. Plaintiff further alleges that the anxiety and stress which prevented her from returning to work after she had physically recovered from her medical conditions were caused by the alleged harassing conduct of her supervisor, which also violated the NYHRL and the NYC Administrative Code.
Legal Discussion
1. Pleading Standard
It is well-settled that, on a motion to dismiss, the court accepts as true the facts alleged in the complaint, accords the plaintiff the benefit of every favorable inference, and strives to determine only whether the facts as alleged fit within any cognizable legal theory ( Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409). In opposition to such a motion, a plaintiff may submit affidavits and other evidence "to remedy defects in the complaint" and "preserve inartfully pleaded, but potentially meritorious claims" ( Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 636). Though limited to that purpose, such additional submissions of the plaintiff, if any, will similarly be "given their most favorable intendment" ( Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 366).
Generally, employment discrimination complaints are reviewed under notice pleading standards. Indeed, under the Federal Rules of Civil Procedure, it has been held that a plaintiff alleging employment discrimination "need not plead specific facts establishing a prima facie case of discrimination" but need only give "fair notice" of the nature of the claim and its grounds ( Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 515, 514; see also Schwaller v. Squire Sanders Dempsey, 249 A.D.2d 195, 196 [1st Dept. 1998], describing plaintiff's burden in opposition to summary judgment motion in discrimination case as " de minimis").
2. Discriminatory Discharge Claim with "Accommodation" Issue
Defendant does not challenge plaintiff's pleading that she was disabled in the sense that she suffered the type of "physical, mental or medical impairment" covered by the statute, or that those impairments caused extended absence. Rather, the argument focuses upon Executive Law § 292 (21), as amended effective January 1, 1998 (L. 1997, ch. 296), which defines the term "disability" as "limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held" (Executive Law § 292, see also Executive Law § 296, it is an unlawful practice for an employer "to refuse to provide reasonable accommodations," except that the employer cannot be required to provide accommodations that would "impose an undue hardship" on the employer), which language incorporates the reasonable accommodation protections afforded to individuals with disabilities under the ADA. Defendant argues that since plaintiff was unable to perform her job "in a reasonable manner" at and prior to her discharge, she did not have a "disability" within the meaning of the statutes.
It is clear that cases brought prior to the amendment of the NYHRL did not extend their consideration to whether reasonable accommodations had been requested or could have been provided ( see, all prior to application of amendment, Dantonio v. Kaleida Health, 288 A.D.2d 866, 867 [4th Dept. 2001], lv denied 98 N.Y.2d 604, treating physician's testimony that plaintiff could not perform job "without accommodation" was "fatal" to her claim; DiSanto v. McGraw-Hill, Inc./Platt's Div., 220 F.3d 61, 63 [2d Cir. 2000], "at the time of discharge, the NYHRL definition of `disability' was limited to `disabilities which do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held'"; Pembroke v. New York State Office of Court Admin., 306 A.D.2d 185 [1st Dept. 2003], inference of discrimination refuted by demonstration that plaintiff was unable to perform his duties in a reasonable manner).
However, under the NYHRL, as amended, the employee can overcome a question of inability to reasonably perform a job by showing that the employee requested and was refused reasonable accommodations addressed to a disability ( see Timashpolsky v. State University of New York Health Science Center at Brooklyn, 306 A.D.2d 271, 273 lv denied, 1 N.Y.3d 507, summary judgment properly granted based on evidence that narcoleptic anesthesiologist was unable to perform in a reasonable manner "despite the hospital's reasonable attempt to accommodate his needs"; see also Pembroke v. New York State Office of Court Admin., supra, "even if defendant owed plaintiff a duty to accommodate his disability, plaintiff failed to satisfy his initial burden of showing that he proposed and was refused an objectively reasonable accommodation"; see Porter v. New York University School of Law, 2003 WL 31016647 *8 [S.D.N.Y. 2002], under NYC Administrative Code, employee must be able to perform job).
Here, defendant contends that its obligation to provide a "reasonable accommodation" does not create a requirement that an employer hold a position open indefinitely for an injured or temporarily disabled employee. Defendant's contention is broadly correct ( Parker v. Columbia Pictures Industries, 204 F.3d 326, 338 [2d Cir. 2000], "The duty to make reasonable accommodations does not, of course, require an employer to hold an injured employee's position open indefinitely while the employee attempts to recover, nor does it force an employer to investigate every aspect of an employee's condition before terminating him based on his inability to work"; Scott v. Memorial Sloan-Kettering Cancer Center, 190 F. Supp.2d 590 [S.D.N.Y. 2002], employer is not required to provide either extended paid leave or indefinite unpaid leave). However, it has also been held that, if an employee makes a request for accommodation while still on leave, the employer is required to make an attempt to determine the feasibility of the accommodation proposed, including the availability of an extended leave of absence ( Parker v. Columbia Pictures Industries, supra, 204 F.3d at 338; see, e.g., Rogers v. New York University, 250 F. Supp.2d 310 [S.D.N.Y. 2002], plaintiff suffering psychological difficulties raised issue of fact as to whether extended leave was an available and reasonable accommodation).
Compare Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 202 (S.D.N.Y. 1999), issue of fact whether request for an additional 17 weeks leave of absence by an employee suffering from mental illness was reasonable or not, as a matter of law, when plaintiff was unable to predict with certainty the date of his return but doctor provided "reasonable estimate"; Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000); Ralph v. Lucent Techs., Inc., 135 F.3d 166, 171-72 (1st Cir. 1998), holding that a four-week additional leave, beyond a 52-week leave, for mental breakdown was reasonable; Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998), affirming that plaintiff's request for additional leave was not unreasonable even though she did not give a specific return date, but rather provided a doctor's letter stating that her condition would improve enough for her to return to work if she were given more time.
Plainly, plaintiff affirmatively alleges that she was unable to work at the time of discharge and for fifteen months prior thereto, and fails to allege that she would have been capable of performing the functions of her job in a reasonable manner upon provision of reasonable accommodations ( see Thompson v. New York City Dept. of Probation, 2003 WL 22953165 * 3, fn. 5 [S.D.N.Y. 2003], "the ADA itself requires proof of disability as it is defined therein, and a failure to offer facts in support of this element would require dismissal because, in the absence of a qualifying disability, `no set of facts . . . would entitle [the plaintiff] to relief" [citation omitted]). In this case, the pleading sets forth only the untenable claim that the defendant employer was required to accommodate plaintiff by holding her job open indefinitely until she was fully recovered, which is insufficient under both the NYHRL and the equivalent NYC Adminstrative Code provisions.
Since it appears that plaintiff has not considered the claim in light of the law concerning reasonable accommodations, notwithstanding that these claims must fall as pleaded, plaintiff is granted leave to move to replead consistent with this decision, if so advised.
3. Harassment Claims
The standard for a hostile work environment claim requires plaintiff to prove that the conduct was offensive, pervasive, and continuous enough to amount to a constructive discharge ( Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 [2d Cir. 1992]). A work environment is "hostile" "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'" ( Harris v. Forklift Systems, Inc., 510 U.S. 17, 21). The laws prohibiting discrimination do not prohibit ordinary rudeness or create a code of civility ( Faragher v. City of Boca Raton, 524 U.S. 775, 788).
Even taking the allegations in the complaint as true, plaintiff's allegations that her supervisor repeatedly called her, sounded irritated and annoyed, and demanded that she return to work, fail to state a cause of action for discriminatory harassment under the NYHRL or the NYC Administrative Code. Indeed, some communication between the employer and employee concerning the expected duration of her recovery would appear to be necessary in order for the employer to make reasonable accommodations for the employee's absence ( Scott v. Memorial Sloan-Kettering Cancer Center, supra, 190 F. Supp.2d at 599, "We do not think it unreasonable for an employer to ask when an employee will be able to perform her job"). As in Scott v. Memorial Sloan-Kettering Cancer Center, supra, the allegations that plaintiff's supervisor called on a number of occasions and expressed irritation at her continued absence, do not amount to an allegation that the workplace was so "permeated with `discriminatory intimidation, ridicule, and insult'" that the conditions of plaintiff's employment were altered. Plaintiff's allegations that the calls actually aggravated her mental stress and anxiety add nothing to either the discriminatory discharge claim or the harassment claim. Finally, the conduct complained of did not occur in the workplace.
In general, claims of disability resulting from stress caused by a particular supervisor have not been well-received ( see Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 [7th Cir. 2000], "Standing alone, a personality conflict between an employee and a supervisor even one that triggers the employee's depression is not enough to establish that the employee is disabled, so long as the employee could still perform the job under a different supervisor"; Thompson v. Federal Reserve Bank of New York, 2004 WL 330243 *8 [S.D.N.Y. 2004], "Job-related stress — particularly that caused by working with a particular supervisor — is not considered a disability under the ADA"; Harrison v. N.Y. City Hous. Auth., 2001 WL 1658243 *2 [S.D.N.Y. Dec. 26, 2001], "Even assuming that [plaintiff] suffered extreme work-related stress due to her relationship with her supervisors, that does not mean that she is `disabled' within the definition of the ADA"; Potter v. Xerox Corp., 88 F. Supp.2d 109, 112-13 [W.D.N.Y. 2000], "[P]laintiff's impairment is his inability to work under [a particular supervisor]").
This branch of the pleading is also insufficient.
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Accordingly, the motion to dismiss is granted, with leave to move to replead the first and second causes of action within 30 days hereof.
This decision constitutes the order of the court.