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January 25, 2002


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 approximately 1996.

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. 46, 59).

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.

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 multi-functional 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 new ...

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