KATHERINE B. FORREST, District Judge.
On September 2, 2011, plaintiff brought claims for discrimination and retaliation under the American with Disabilities Act ("ADA"), 42 U.S.C § 12101
Plaintiff has proffered insufficient evidence to raise a triable issue of fact as to whether he can establish a prima facie case of discrimination or retaliation under federal, state, or city laws. In addition, Major has proffered a legitimate, non-discriminatory reason for plaintiff's termination—namely, the elimination of plaintiff's position when defendant Kanner, the person for whom plaintiff was hired to work, abruptly left the firm, eliminating the necessity for plaintiff's position—and other positions in Major's Men's Division—entirely.
Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) and 56 to dismiss the action or for summary judgment. For the reasons discussed below, defendants' motion for summary judgment is GRANTED.
The undisputed facts set forth below are merely a summary of the purported "facts" before the Court. Such summarization was necessary to decipher plaintiff's claims—and whether they have any merit. This Court uses the word "summarized" intentionally: the papers in support of and in opposition to defendants' summary judgment motion do not distill this case to the critical elements. In particular, plaintiff's papers contain a prolonged recitation of largely irrelevant events which have nothing to do whether defendants have engaged in actionable wrongdoing.
More importantly, neither party has submitted the required Rule 56.1 statement of undisputed facts.
Plaintiff was hired on a part-time basis by defendant Major at the beginning of September 2009. He had a five-hour daily commute (round trip) to and from his home in Pennsylvania to New York City. This commute was of plaintiff's own choosing. (
On January 1, 2010, plaintiff resigned from Major, citing his desire to continue his education, his lack of financial means to move to New York, and his inability to "keep[] up [his] drive in a `sink or swim' type atmosphere," as well as his disagreement "with the philosophy in [Major's] Men's Division," and the fact that it was "not a place" in which he saw "the potential for growth." (Doe Aff. ¶ 8; Sherman Aff. ¶ 6; Maguire Aff. Ex. B (Jan. 1, 2010, 2:46 p.m. email from plaintiff to Sherman (SM000133)).) Later that month, plaintiff was in contact with a Major employee, Tom Winslow (who initiated the contact is disputed, but ultimately immaterial), regarding the possibility of returning to Major for purposes of assisting with Fashion Week. (Doe Aff. ¶ 9; Sherman Aff. ¶ 7.) Major rehired plaintiff as of February 1, 2010 in a full-time capacity as Kanner's assistant. (Sherman Aff. ¶¶ 7, 11.)
In March 2010, plaintiff began experiencing health problems and inquired of Sherman regarding his health benefits, at which time Sherman informed him that Major was switching insurance companies and he would be provided with insurance by April. (Doe Aff. ¶ 12.) As of April 22, 2010, plaintiff was informed that he had full health insurance benefits from Major. (Maguire Aff. Ex. B (Apr. 22, 2010 email exchange between plaintiff and Kanner (Kanner: "Katia said ur [sic] insurance is up and running," plaintiff: "That's amazing about my insurance. I'm making a doctor's appointment tomorrow for Saturday.")).)
On May 3, 2010, plaintiff was diagnosed with HIV and informed defendants Sherman and Kanner of the diagnosis that same day. (Doe Aff. ¶ 16; Sherman Aff. ¶ 13; Kanner Aff. ¶ 12.) By plaintiff's own account, upon learning of his diagnosis, Sherman was "sympathetic" and told plaintiff "to take as much time as [he] needed away from work." (Doe Aff. ¶ 16.) On May 4, 2010, the diagnosis was confirmed. (Doe Aff. ¶ 17.) Upon relaying that to Sherman, he asked if Major would provide a car service "to shuttle [plaintiff's] parents to the train statement from the hospital at night, and to use for [plaintiff's] Dr's [sic] appointments." Sherman agreed—and arranged for the car service for plaintiff and his family on 13 occasions. (Doe Aff. ¶ 17; Sherman Aff. ¶ 13.)
Prior to his diagnosis, during the period from February 1, 2010 through May 4, 2010, plaintiff took a number of sick days (according to defendants' count, 11) and committed serious errors in his work (again according to defendants, six). (Sherman Aff. ¶ 12;
Subsequent to his diagnosis, plaintiff took sick leave from May 4, 2010 through June 21, 2010, during which time Major paid for a car service for plaintiff and/or his family at least 13 times. (Sherman Aff. ¶¶ 13-14;
Upon plaintiff's return to work in June 2010, "plaintiff required more income to reach the level for full health insurance and to cover his ongoing expenses," which Major accommodated by "increase[ing] plaintiff's salary so that he would qualify for full prescription drugs benefits." (Sherman Aff. ¶ 14.) In July 2010, Major gave plaintiff a $1,000 advance on his pay. (Sherman Aff. ¶ 16; Sherman Reply Aff. at 4.)
Plaintiff returned to work for some period of days between June and August 2010, during which time he again committed errors. (
On September 10, 2010, plaintiff committed another, this time "serious," error at work—which plaintiff concedes occurred. (Sherman Aff. ¶ 17; Kanner Aff. ¶ 15; Doe Aff. ¶ 34;
At the September 13, 2010 meeting among plaintiff, Sherman and Kanner, Kanner asked, "Where do we go from here?," at which time, plaintiff asked to take temporary disability. (Doe Aff. ¶ 35.) Sherman explained that if that was the route plaintiff wished to take, a more favorable financial option would be being a "firing" in which plaintiff was given a "generous severance" and could collect unemployment since temporary disability would not be financially advantageous, but would be able to return to Major upon regaining his health. (
On September 24, defendant Sherman emailed plaintiff a letter dated September 23, accepting plaintiff's resignation, but offering him an opportunity to return to work for Kanner "should [he] wish to come back to work immediately." (Doe Aff. ¶ 41 & Ex. K; Sherman Aff. Ex. A.) On September 24, plaintiff indicated to Kanner that he would be returning to work on Monday, September 27. (Doe Aff. ¶ 42 & Ex. L;
On September 26, plaintiff emailed Sherman to let her know that he had become ill and would be unable to return to work on September 27. (Doe Aff. ¶ 43 & Ex. M; Sherman Aff. ¶ 19.) Sherman responded: "Get well and keep me posted." (Doe Aff. Ex. O.) Two days later Sherman requested that plaintiff call John Sherman (in Major's legal department), at a time convenient for plaintiff. (Doe Aff. Ex. R.) On September 29, John Sherman initiated a call to plaintiff in which John Sherman informed plaintiff that Major would pay him his full salary for six weeks commencing on October 4, 2010, that his health insurance coverage would remain through the end of the 2010 calendar year, and that he could take an unpaid leave of absence during which he could claim disability or return to work if permitted by his doctor. (Doe Aff. ¶ 48; Sherman Aff. Ex. B.)
Sherman sent a letter to plaintiff memorializing their September 29 conversation. (Sherman Aff. Ex. B; Doe Aff. ¶ 49.) Plaintiff responded to the email, "I appreciate you thinking of me, as I have received the attached letter. I will meet with my doctor tomorrow . . . as [sic] we shall determine the length of time for my absence." (Doe Aff. Ex. R.) Plaintiff did not dispute any of the facts of his employment at Major laid out in the October 1 letter upon receipt. (
On October 27, 2010, plaintiff's supervisor, Kanner, left Major—with Major's "understanding and consent"—to start a competing agency, and took a substantial portion of Major's business with him. (Sherman Aff. ¶ 22; Kanner Aff. ¶ 20.) Plaintiff, whose only position at Major had been as Kanner's assistant,
The next day, Sherman sent plaintiff a letter on Major's behalf notifying him of Kanner's departure and that as a result of the "reorganization and downsizing," "several positions, including [his], ha[d] been eliminated." (Doe Aff. Ex. V;
On November 2, 2010, plaintiff responded to the letter sent via email that same day stating that he was "confused as to why [his] specific position had been eliminated," but thanked Sherman "for my time of employment and for everything you've assisted me with," and asked if he could use Sherman "as a reference for future employment opportunities." (Doe Aff. Ex. W.)
On November 22, 2011, defendants notified plaintiff that they intended to move to dismiss this case under Fed. R. Civ. P. 12(b)(6) or 56. (Maguire Aff. Ex. E.) Defendants filed the instant Rule 56 motion on December 16, 2011 (
Although plaintiff has asserted that the motion is premature because discovery has yet to occur, he has not sought specific discovery prior to responding to this motion, has not made a motion pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, and has even failed to set forth any particular discovery that he would take if provided an opportunity to do so. Accordingly, his argument as to prematurity fails.
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact."
Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial," and cannot "rely merely on allegations or denials" contained in the pleadings. Fed. R. Civ. P. 56(e);
Plaintiff has brought both discrimination and retaliation claims under the ADA, 42 U.S.C. §§ 12112(a), 12203(a). (Compl. ¶¶ 98-103.) The ADA makes it unlawful for an employer, with respect to hiring or discharge, to "discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). In addition, the ADA prohibits employers from retaliating against an individual for "oppos[ing] any act or practice made unlawful" by the ADA. 42 U.S.C. § 12203(a). The ADA applies to employers: it does not confer individual liability.
To establish a
Assuming plaintiff can make out a prima facie case (and this Court does not find that plaintiff here can), the burden would shift to Major under the analysis of
Here, plaintiff fails to (i) raise triable issues with respect to the third and fourth elements of the prima facie case, and (ii) rebut the legitimate, non-discriminatory rationale proffered by Major for plaintiff October 2011 termination.
Plaintiff has not offered sufficient evidence to create a triable issue of fact regarding whether he was qualified to perform his position with or without reasonable accommodation, or that he was fired because of his diagnosis with HIV.
First, the amount of leave that plaintiff took, starting prior to his diagnosis with HIV (the 11 days prior to May 4, 2010), the six weeks of leave he took between May and mid-June 2010, the leave he had to take unexpectedly in September 2010 through what would have been sometime in November 2010, combined with his admitted errors in job performance, meant that he was not an "individual with a disability who, with or without reasonable accommodation" could perform the "essential functions of the employment position." 42 U.S.C. § 12111(8).
Courts have found that requested leave was unreasonable as a matter of law when absences were so erratic that the employer literally could not know from one day to the next whether the employee would be returning to work.
Absences aside, plaintiff experienced problems in actually performing the essential functions of his job period. Plaintiff does not dispute that he made errors in the performance of his duties at Major. Instead, he essentially asks the Court to overlook those errors because others at Major made the same or similar errors (although there is no support in the record, other than plaintiff's assertion, for that fact). (
Correctly booking models for Fashion Week, correctly conveying information to models about the time of their bookings, correctly posting information about models to Major's website presumably are all core functions of an assistant's job at a modeling agency. The undisputed facts recited above demonstrate that plaintiff committed errors in performing all of those job functions, as well as others. A number of errors occurred prior to plaintiff's diagnosis with HIV, and thus, add further support to the Court's conclusion that plaintiff was unable to perform the essential functions of his job at all— even with the reasonable accommodations made for him by Major (
Second, plaintiff likewise fails on proving that he was fired
The only thing that plaintiff sets forth regarding his firing are a number of self-serving assertions that, even construed entirely in plaintiff's favor, fail to show (or even suggest) that he was fired based upon his disability. Plaintiff asserts that, during his negotiations for how he could remain financially secure and with full insurance benefits albeit with a reduced work schedule or on full leave, he began to suspect on September 20, 2010 that Kanner did not want him to work for him any longer. (
Plaintiff's further self-serving assertions that Sherman herself exhibited a "very emotional" or angry demeanor towards plaintiff, refused to speak to him for a 40-minute period of time, or made rash statements in what had clearly become a tense situation (
Accordingly, plaintiff has failed to meet his burden of demonstrating a prima facie case of discriminatory under the ADA.
Even if plaintiff could establish a prima facie case (and as discussed above, he cannot), plaintiff fails to rebut the uncontroverted evidence of defendants' legitimate, non-discriminatory reason for plaintiff's termination.
The event that resulted in the elimination of plaintiff's position occurred through no fault of Major's or Sherman's. It is undisputed that his position with Major was to function as Kanner's assistant; it is also undisputed that Kanner abruptly left Major in late October 2010, taking a significant portion of Major's male model business with him. In other words, Major no longer needed to have an assistant for Kanner, because Kanner was no longer with Major. Nothing presented by plaintiff rebuts defendants' legitimate, non-discriminatory reasons for his termination. That in itself is sufficient grounds on which to grant summary judgment.
It may be that plaintiff would have preferred to have been placed in a new position at Major, but there is no legal requirement that as part of reasonable accommodation under the ADA, Major create a new position for him at a now smaller firm, once his own position was eliminated.
There is no doubt that based on the chronology of events, Kanner's departure from Major followed a period of months when plaintiff and defendants had been dealing with plaintiff's absences and discussing a period of disability leave or termination that might provide plaintiff with financial resources along with a period of health coverage. But there is no evidence in the record of any causal link between those discussions and Kanner's departure from Major.
Defendants have proffered a legitimate, non-discriminatory reason for plaintiff's termination which stands unrebutted in the record. Thus, even if plaintiff could establish a
Accordingly, this Court grants defendants' motion for summary judgment on plaintiff's ADA discrimination claim.
To establish a
To compare the elements of a
Plaintiff has also asserted claims under the New York State Human Rights Law, N.Y. Exec. Law § 290
For the aforementioned reasons, the Court finds that plaintiff has failed to raise a genuine issue of material fact on his discrimination and retaliation claims under federal, state, or city law.
Accordingly, defendants' motion for summary judgment is GRANTED and this case is dismissed.
The Clerk of Court is directed to enter judgment for defendants.
The Clerk of the Court is further directed to terminate the motion (Dkt. No. 19) and to terminate this action.
SO ORDERED.
In addition, the Maguire Affidavit also contains factual averments of which Mr. Maguire could not possibly have had first-hand knowledge. (
The Court likewise does not credit the self-serving assertions in plaintiff's affidavit that have no record support.
Plaintiff's assertion that Major had made three new hires since October 1, 2010 (Doe Aff. ¶ 52) is completely without support in the record.
