The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.
This is an action alleging that defendants discriminated against the
plaintiff in violation of the Americans With Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq., the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2601 et seq., and New York State Human Rights
Law ("NYHRL"), N.Y. Executive Law § 290 et seq. Now before the Court
is defendant's Motion for Summary Judgment [#15]. For the reasons that
follow, that motion is denied.
Unless otherwise noted, the following facts are undisputed. The
plaintiff, Kevin Mulhern, was born with Nail-Patella Syndrome, "a rare
inherited disorder . . . characterized by abnormalities of bone, joints,
fingernails and toenails, and kidneys." MERCK MANUAL OF DIAGNOSIS AND
THERAPY, p. 1907 (17th ed. 1999). In 1979, plaintiff began working at the
defendant, Eastman Kodak Company ("Kodak"), and in or about 1987, he
transferred to the Production Flow Unit ("PFU") in the Color Film
Manufacturing Department. For purposes of this motion, it is sufficient
to note that the PFU included various separate areas of operation,
including the 3R area, PRS area, 8 Room, Hopper Room, and Filter
Manufacturing. The 3R area consisted of two main tasks, film rewind and
film retest. (Mulhern Deposition, pp. 191-92). Workers in the 3R area
were required to lift up to 40 pounds, push and pull carts weighing up to
1,500 pounds, lift, climb and stretch, and to walk and stand several
hours per shift. (Id., p. 38). Workers in the PRS, on the other hand,
were essentially bookkeepers, who had to use computers, sit, and walk.
Employees required more training to work in the PRS than they did to work
in 3R. (Scott Deposition,
p. 45). The PRS section consisted of four
separate tasks, a 3R coordinator, an off-line operator, an on-line
operator, and an "SDC" operator.*fn1 (Mulhern Deposition, pp. 47-48, 59;
Scott Deposition, p. 52).
Plaintiff began working in the 3R area, and eventually attained the
position of lead operator on his shift, which position he held for
approximately ten years. However, as a result of his Nail-Patella
Syndrome, the work in the 3R area caused him to experience collapsing
arches and severe pain in his back and legs. (Mulhern Deposition, pp.
39, 71). Nonetheless, he continued working in the 3R area until
In 1996, plaintiff obtained a transfer to the PRS section of the PFU,
because the work there was less physically demanding. (Mulhern
Deposition, pp. 39-40). Plaintiff indicates that he had no problem
performing the work in the PRS area. (Id., p. 59). As a result of working
in both the 3R and PRS areas, plaintiff became the only employee in the
PRS and 3R areas who was trained to perform all of the various tasks as
to both assignments. Accordingly, although he worked primarily in the PRS
section, plaintiff also occasionally worked in the 3R area when that area
needed additional workers, however, he has indicated that, because of his
physical ailments, he was "barely" able to perform the 3R work. (Id., pp.
In 1998, the defendant began implementing a policy, whereby separate
work areas were to be combined into zones, and employees were to be
cross-trained to perform the various tasks within the zone . Defendant
indicates that, due to severe budget constraints and downsizing, it was
necessary that employees be able to work flexibly between various tasks
within a particular zone. Plaintiff agrees that this was the purported
goal of the zone policy. (Mulhern Deposition,p. 59). Pursuant to this
policy, the 3R and PRS areas were combined into one zone, meaning that PRS
workers were expected to also work in the 3R area.
The extent to which workers had to rotate, however, is unclear, since
there is no written job description pertaining to workers in the PRS/3R
zone, and plaintiff's supervisors have provided differing explanations.
For example, Marianne Valerio, plaintiff's zone leader, indicated that
PRS/3R operators such as plaintiff had to be cross-trained in each
position and able to perform each function. (Valerio Deposition, p. 25).
Later, she indicated employees had to be able to perform some, but not
all, of the tasks within the zone, and that there was no minimum number
of tasks to be performed. (Id., pp. 49-50). Still later, however, she
stated that, there was a minimum requirement, which was that an employee
had to be able to perform both tasks in 3R, and only one task in PRS, the
entry-level position of on-line operator. (Id., pp. 50-51). On the other
hand, Ronald VanHarken, the Operations Director of the PFU and the most
senior Kodak Supervisor deposed in this action, indicated that it was not
a requirement that each employee of the PRS/3R zone perform all tasks, or
even some tasks within both areas, but rather, that each particular shift
be able to handle whatever situation might arise. In that regard, he
indicated that each shift supervisor had to make a determination as to
whether or not he had a sufficient number of employees to perform the
tasks required during that shift. (VanHarken Deposition, pp. 80-81).
VanHarken subsequently indicated that
each employee had to at least have
the ability to perform all of the tasks in a given zone, although he also
acknowledged that not all employees in plaintiff's zone were trained to
perform all of the various tasks. (Id., pp. 101-104).
Plaintiff's supervisors also gave conflicting statements about whether
or not employees' essential job functions were effected by their level of
training. For example, Valerio indicated that, in 1998, not all PRS/3R
zone employees actually worked at all of the various tasks within the
zone, because they were not trained for the particular jobs. (Valerio
Deposition, p. 45-46). However, she indicated that tasks for which
employees were not trained were still essential functions of the job.
(Id., p. 46). On the other hand, John Scott testified that an employee's
essential job functions were determined by his certification level.
(Scott Deposition, p. 39). More specifically, Scott indicated, that as of
1998, it became an essential job requirement of all employees of both the
PRS and 3R areas that they be able to work in both the PRS and 3R areas,
however, not until they were trained: "[A]s they received training, that
they be able to work in both areas was an essential job function." (Id.,
p. 65)(emphasis added). In that regard, Scott testified that, if, in
1998, plaintiff had only been certified to work in PRS, he would have
been able to perform the essential functions of his job. (Id., pp.
49-50). Subsequently, however, he testified that an employee's essential
job functions could include tasks for which he had not been trained.
(Id., pp. 100-02). In any event, the supervisors agree that employees
were never told that they would be terminated if they were unable to
rotate. (Valerio Deposition, p. 52; VanHarken Deposition, p. 121).
In June 1998, in response to the creation of the 3R/PRS zone, and due
to his difficulty performing the heavy work in the 3R area, plaintiff
obtained a "work prescription," because he wanted "protection from doing
heavy work." (Mulhern Deposition, pp. 68-69). The work prescription
required him to avoid bending, pushing, and pulling, and limited him to
standing one hour per 8- or 12-hour shift, which prevented him from
working in the 3R area, the 8 Room, and the Hopper Room, but did not
affect his work in the PRS area. (Id., pp. 69-71). At his deposition,
plaintiff indicated that he was not aware of any accommodation that would
have permitted him to work at any PFU job other than the PRS. (Id., pp.
82, 112, 169-70). As a result, the only accommodation which plaintiff
ever requested was that he be allowed to work exclusively in the PRS.
(Id., pp. 70, 82, 217).
Defendant's procedure regarding work prescriptions required the
company's medical department to send an employee's work prescription to
the employee's supervisor, who would then complete the form, indicating
whether or not the employee could perform his job. If the employee needed
an accommodation in order to perform his job, the supervisor would also
complete a document entitled "Accommodation Request Documentation,"
explaining what type of accommodations were considered, and whether or
not the accommodation would be appropriate and/or effective. (See, e.g.,
Shinaman Affidavit, Exhibit I). Upon receiving plaintiff's work
prescription, plaintiff's supervisor, John Scott, wrote that, "Kevin will
be assigned to his primary task in PRS which will not conflict with this
[sic] restriction." (Rogers Affidavit, Exhibit A)(emphasis added). Scott
indicated that, at that time, he did not believe it was an accommodation
to allow plaintiff to work solely in PRS. (Scott Deposition, p. 36-37).
In August of 1998, defendant's medical department issued an updated
work prescription, with essentially the same work restrictions, and Scott
again indicated that he would assign plaintiff to the PRS. (Mulhern
Deposition, p. 72). At that time, however, Scott indicated that he
considered it an accommodation to allow plaintiff to work solely in the
PRS. (Scott Deposition, pp. 36-37). For the rest of 1998, plaintiff
worked exclusively in the PRS, except for 12 hours working in the 8 Room
Hyper, a specialized task within the 8 Room that involved coating film.
(Mulhern Deposition, p. 84).
In November of 1998, plaintiff informed the defendant's medical office
that he would be having knee surgery in January 1999. Plaintiff indicates
that at that time, a company medical nurse, Joyce Schwab, told him that
if he returned from surgery with any kind of work restriction, "it would
end badly" for him, and that she had seen it happen "too many times."
(Mulhern Affidavit, ¶ 26). Subsequently, plaintiff asked John Scott
about Schwab's comment, and Scott told him not to worry, and that he
would be allowed to return to work exclusively in the PRS area after his
surgery. (Id., ¶ 27). However, plaintiff alleges that in December of
1998, Scott reversed his position, and told him that his assignment to
the PRS could not exceed six months. Prior to that, Scott had never told
plaintiff that the assignment to the PRS would be limited in duration.
(Mulhern Deposition, p. 73). According to plaintiff, Scott said that
Kodak's management had recently decided not to accommodate any medical
restrictions beyond six months, and that plaintiff would therefore have
to leave work on short-term disability. (Id., pp. 73-75; Mulhern
Affidavit, ¶ 28).
Scott denies telling this to plaintiff. (Scott Deposition, pp. 62-63).
Rather, he indicates that, after accommodating plaintiff in the PRS for
six months, he decided that the PFU could not continue to accommodate
him, since he could not perform the essential functions of his job.
(Id., pp. 86-87). More specifically, Scott concluded that it was an
essential function of plaintiff's job to be able to perform tasks within
the 3R. (Id., pp. 68, 99-100). On the Accommodation Request Documentation
form that he completed on December 7, 1998, Scott wrote that continuing
to allow plaintiff to work in the PRS would not be an effective or
appropriate accommodation, because, "[j]ob flexibility between PRS and 3R
rewinder/retest is critical to department performance (overtime
reduction, cycle time)." (Shinaman Affidavit, Exhibit I). Accordingly,
Scott forced plaintiff to leave work and go on short-term disability,
although he did permit plaintiff to remain in the PRS an additional two
weeks, to coincide with his leaving work on January 23, 1999, to have
knee surgery. (Scott Deposition, p. 75).
As a result of his surgery, plaintiff was unable to perform any work
until April of 1999. (Mulhern Deposition, p. 89). On April 5, 1999, he
went to the defendant's medical office and obtained a new work
prescription, which prohibited bending, standing more than one hour per
day, climbing, and "stooping or other associations." (Rogers Affidavit,
Exhibit M). Although the prescription did not mention pushing and
pulling, plaintiff admits that he could not perform the pushing and
pulling required in the 3R. (Mulhern Deposition, pp. 69-71, 82, 100,
103-06). However, even with those restrictions, he was able to perform
all of the PRS functions.
The work prescription was sent to Richard Spalty, the new PFU
supervisor who had replaced John Scott, who did not know plaintiff, and
who was not familiar with his work history.(Rogers Affidavit, Exhibit D,
p. 32). The work prescription listed plaintiff's
job functions as
follows: "lift 40 [lbs.], push/pull up to 1500 lb, bend, stoop, walk, 12
hour shift." (Shinaman Affidavit, Exhibit N). On April 9, 1999, Spalty
wrote on the work prescription form: "Due to the restrictions listed, we
are unable to accommodate Kevin Mulhern in any of the operations areas
that report to me. This is based upon the essential job functions on file
with HR." (Id.). Spalty further indicated that allowing plaintiff to
remain in the PRS was not an appropriate accommodation, because: "Job
flexibility and rotation is critical to department performance to cover
all areas, on any shift, with no overtime and to improve cycle time. Even
the Production Recorder Office [PRS] requires frequent standing and
walking that far exceeds the 1 hour limitation during a 12 hour shift."
(Rogers Affidavit, Exhibit F)(emphasis added).
As a result of Spalty's decision, plaintiff was not permitted to return
to work in the PRS, and he remained out of work on temporary disability
during all of 1999, during which time his physical condition did not
improve. (Mulhern Deposition, p. 106). During that period, plaintiff
looked for other positions within Eastman Kodak, using a computerized job
listing maintained by the company known as "EK Jobs," which listed
approximately 99 percent of the available jobs within Kodak. (Mulhern
Deposition, p. 86; Noble Deposition, pp. 20-21). The other one percent of
jobs not posted on EK Jobs were posted internally to departments of
divisions which sought candidates from within. (Noble Deposition, p.
21). Plaintiff checked the listing about once a month, but did not find
any jobs for which he was qualified. (Id., p. 87). Plaintiff did not
apply for any jobs within Eastman Kodak, nor did he apply for any job
outside of Eastman Kodak. (Id., pp. 87, 109). Spalty also looked for
suitable jobs for plaintiff within Eastman Kodak, but found none.
(Mulhern Deposition, pp. 82-83).
At some point during 1999, while plaintiff was out of work, defendant
abolished the PRS/3R zone, and began permitting employees to rotate to
various other positions both in and out of the PFU. Plaintiff alleges
that this change was made because certain 3R employees did not have the
aptitude for the PRS tasks. Plaintiff contends that he was never told
about this change, and that he learned about it on his own through
reviewing company records. Spalty admits that he abolished the 3R/PRS
zone, and permitted employees of either the PRS or 3R to rotate to other
areas of the PFU, such as the 8 Room or the Hopper Room. (Spalty
Deposition, p. 69). However, he maintains that employees still had to
rotate, and that the expansion of the zone did not benefit plaintiff,
since he could not work in the 8 Room or the Hopper Room.
However, plaintiff indicates that he could have rotated into the Hyper
Wash portion of the 8 Room (Mulhern Affidavit, ¶ 42), and John Scott
admitted that, even with his restrictions, plaintiff was able to work in
the 8 Room Hyper as a second operator. However, Scott contends that was
not feasible, because Hyper was not a "regular job," as it only took
place from three to five times a year and lasted between 16 and 30 hours.
(Scott Deposition, pp. 58, 101). However, the Accommodation Request form
which Spalty completed in May 1999, denying plaintiff's request to return
to work, does appear to indicate that Hyper was a "regular job":
PFU is responsible to provide coverage for several functional areas.
These areas are [PRS](Bookkeepers), 3R Rewinder, 8
Room, Hypering, Pump Room, and Coating Equipment.
Operators work rotating shifts and provide 24 hour a
day, seven day a week coverage to production.
Operators are required to be multi-tasking and
and must be able to rotate through at
least two areas.
(Rogers Affidavit, Exhibit F, p. EKC 301)(emphasis added).
Plaintiff also contends that a PFU employee named Sam Brown, who had
physical limitations similar to his, had been allowed to work exclusively
in another area known as "Flat Filters" during 1999 (Mulhern Affidavit,
¶ 38), and that he too could have worked in the Flat Filters area.
Defendant, however, maintains that plaintiff was not physically capable
of working in the Flat Filters area, because such work required lifting
up to 40 pounds and required employees to be on their feet "nearly the
entire day." (Matusz Response Affidavit, Exhibit D, VanHarken
Deposition, pp. 41-42). VanHarken further indicated that there were no
job openings in Filter Manufacturing. (Id.). Plaintiff also alleges that
defendant permitted one PRS operator, Rebecca Lyman, to rotate out of the
PFU altogether to its State Street Office, while he was never given that
opportunity. (Mulhern Affidavit, ¶¶ 43-44). He further alleges that
some employees were permitted to work exclusively in the PRS. (Mulhern
Deposition, pp. 124, 133, 142-45). Plaintiff indicates that not all
employees in the PRS/3R zone were required to work in the 3R area,
although he does not know their names. (Mulhern Deposition, p. 123).
Defendant, however, maintains that all employees did in fact rotate.
On November 3, 1999, while plaintiff was still out on short-term
disability, his orthopedic surgeon, Dr. Kunze, wrote to defendant's
medical department, and stated:
It is my opinion that this patient will not be able to
return to his previous occupation which requires
pushing 3,000 to 4,000 pounds of material on rollers,
which he has to do, not just because of the problem
with weakness in the left leg, but also problems
involving his right knee. He certainly will have the
restriction of lifting no more than about 100 pounds
and pushing no more than 300 to 400 pounds on a dolly
or some kind of mobile support structure.
(Kunze Affidavit, Exhibit B). On December 1, 1999, Dr. Kunze sent a
follow-up letter, in which he indicated his belief that plaintiff was a
candidate for a modified work assignment, consisting of sedentary work,
"with the ability to rise and walk around intermittently." (Kunze
Affidavit, Exhibit C). Dr. Kunze further noted that plaintiff "should be
prevented from any heavy lifting . . . [and] should not be required to
climb up and down ladders or scaffolds and certainly should not push any
heavy loads as before." (Id.).
In response to Dr. Kunze's reports, on December 9, 1999, defendant's
medical office prepared a final work prescription, which indicated,
"[e]mployee needs mostly sedentary work with ability to change posture as
needed," and "avoid heavy lifting-none over 20 lbs," and which also
prohibited pushing and pulling "heavy loads" and "climb[ing] up and down
ladders or scaffolds." (Rogers Affidavit, Exhibit N). The company nurse
who completed the prescription indicates that she reduced plaintiff's
lifting ability from 100 pounds to 20 pounds, as a result of a subsequent
phone conference with Dr. Kunze or someone at his office, however, Dr.
Kunze denies that he ever had such a discussion. Although the company
nurse claims that she sent this final work prescription to plaintiff's