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April 23, 2002


The opinion of the court was delivered by: Denny Chin, United States District Judge.


In this action, plaintiff Lohengryn Gonzalez sues Rite Aid of New York, Inc. ("Rite Aid") for discrimination on the basis of disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"). He contends that Rite Aid failed to promote him because of his heart condition. Gonzalez also asserts wage and hour claims under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"), and the New York State Labor Law. N.Y. Lab. § 190 et seq. (McKinney 2001) (the "Labor Law"). Plaintiff seeks reinstatement, money damages, and attorney's fees.

Rite Aid moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the "ground that Gonzalez has failed to establish a prima facie case of discrimination under the ADA, or in the alternative, on the ground that Rite Aid denied Gonzalez a promotion for legitimate business reasons: he posed a security risk. Rite Aid also argues that the FLSA claim is time-barred, and that, assuming both federal claims are dismissed, the Court should decline to exercise its supplemental jurisdiction to hear the Labor Law claim. For the reasons set forth below, Rite Aid's motion is denied.


I. Facts

Construed in the light most favorable to plaintiff, the facts are as follows:

A. Gonzalez's Medical History

Gonzalez, a thirty-one year-old man, suffers from a variety of heart ailments. (Declaration of Christine A. Walsh, M.D. at ¶ 3). He was born with several heart defects and underwent open heart surgery when he was an infant. (Id. at ¶¶ 3, 4). In September, 1982, a stress test revealed that Gonzalez's abnormal heart rhythms were increasing. Thereafter, he continued to receive medication, periodic testing, and monitoring. (Id. at ¶¶ 5-7).

Currently, Gonzalez still suffers from hemodynamic problems and abnormal heart rhythms, including "mild aortic insufficiency, mild mitral regurgitation, mild tricuspid regurgitation and mild pulmonary stenosis." (Id. at ¶¶ 11, 12). Plaintiff's "aortic, mitral and tricuspid heart valves leak, and he has mild stenosis — pressure difference across the pulmonary valve." (Id. at ¶ 12). He has sick sinus syndrome with complex ventricular ectopy, which "increases with exercise. As a result, he has been restricted from strenuous activity and sports." (Id. at ¶ 13). Gonzalez has also been diagnosed with several other conditions. (Id. at ¶¶ 14-16).

His treating physician, Dr. Christine Walsh, states in her declaration that "since the beginning of my treatment of Mr. Gonzalez, it has always been and continues to be a probability that he will need a pacemaker implanted to treat the various issues that affect his heart." (Id. at ¶ 18). Dr. Walsh opines that Gonzalez "can work, but he should not perform strenuous activity or competitive sports. As previously discussed, the reason for these limitations is that the more activity that he engages in, the worse and more frequent his abnormal heart rhythms become." (Id. at ¶ 19).

At his deposition, Gonzalez stated that he has not been allowed to play sports since the age of three, and that his doctors "didn't want [him] to do a lot of walking or go up steps or nothing." (Pl. Dep. Tr. at 19). His doctors continue to restrict him from "doing any extreme physical exercises" including "running long distances, strenuous lifting. That kind of exercise that takes a lot of you to do." (Id. at 22).

B. Gonzalez's Employment History

Gonzalez was employed as a cashier/stock person at the Rite Aid located at 1540 Grand Concourse, the Bronx, New York, (the "Grand Concourse store") from July 1998 through December 1998. (Declaration of Seymour Bunyan, Jr. at ¶¶ 1-2; Declaration of Rafael Maldonado at ¶¶ 1-2; Pl. Dep. Tr. at 29). Gonzalez had previously worked at other Rite Aid stores in Manhattan and Spanish Harlem, beginning in December 1997. (Pl. Dep. Tr. at 23-24) Gonzalez informed a manager at each Rite Aid store of his health problems and that "I can't lift real heavy stuff." (Id. at 24). Gonzalez also wrote that he had a heart condition on his job application. (Id. at 23). Although the record is unclear as to the reasons for the termination of Gonzalez's employment, it appears he left Rite Aid in December 1998 voluntarily, as he testified at his deposition that he "was never terminated." (Id. at 30).

C. Gonzalez's Overtime

When Seymour Bunyan ("Bunyan") became manager of the Grand Concourse Rite Aid in July 1998, there was a lot of overstock that the previous manager had failed to categorize. (Bunyan Decl. at ¶ 4). Michael Mallin ("Mallin"), a district manager for several Rite Aid stores including the Grand Concourse store, told Bunyan that he had to bring the overstock down to a manageable level by putting it on the shelves or transferring it to another store. (Id. at ¶ 5). Mallin further instructed Bunyan to work on the overstock problem during the "off-store hours," namely, after the store closed at 9:00 p.m. (Id. at ¶ 6). Rite Aid's overtime policy required the permission of a district manager before employees could work overtime; accordingly, Bunyan spoke to Mallin in August, 1998 and obtained permission for employees to work overtime. (Id. at ¶ 7-8).

Gonzalez was one of the Rite Aid employees who worked on the overstock problem after hours. (Id. at ¶¶ 10-11; Maldonado Decl. at ¶¶ 5-7). Gonzalez also worked on planograms, or changing of store displays for seasonal purposes, as well as inventory. (Bunyan Decl. at ¶¶ 12-14). During the ten month period that Bunyan managed the Grand Concourse store Gonzalez "worked overtime every week" and "on average, Mr. Gonzalez worked approximately 60 hours of overtime per week." (Id. at ¶¶ 22, 42).*fn1 Bunyan prepared Gonzalez's time sheets and payroll reports from August 1998 through December, 1998, and those records "consistently reflected the overtime hours worked by Mr. Gonzalez." (Id. at ¶ 21).

When Bunyan began working at the Grand Concourse store, Gonzalez complained that he was not receiving a paycheck. (Id. at ¶ 25). Twelve weeks later, Gonzalez received a paycheck, but that paycheck did not include his overtime. (Id. at ¶ 26) Gonzalez complained about his overtime pay every week until Bunyan stopped working at Rite Aid.

After hearing Gonzalez's complaint, Bunyan checked the weekly hours on the computer', and found that those hours were different than the hours that Bunyan had entered. (Id. at ¶ 28). Bunyan "entered the hours Mr. Gonzalez worked, which included an average of 60 overtime hours per week, on the payroll computer. I never lowered the hours worked by Mr. Gonzalez that I entered on the payroll computer." (Id. at ¶ 40).

Bunyan advised Dawn Mallone ("Mallone") of Human Resources, verbally and by e-mail, that Gonzalez was not being paid for his overtime. Bunyan sent copies of these e-mails to Mallin and also discussed the issue with Mallin, who replied that he was "working on it." (Id. at ¶¶ 29-30). In November of 1998, Gonzalez, Bunyan, and Mallin met to discuss the fact that Gonzalez was not being paid for his overtime. Mallin's response was "`OT' stands for `own time.'" (Id. at ¶ 31). After this meeting, Bunyan wrote an e-mail to Mallone complaining about Gonzalez's unpaid overtime. (Id. at ¶ 33). Gonzalez also sent letters to his union, Local 1199, which Bunyan reviewed, although the union has no record of those letters. (Id. at ¶ 34; Pl. Ex. I). Bunyan also witnessed an incident where a union representative came to the Grand Concourse store and had a "shouting match" with Mallin regarding unpaid overtime hours for Gonzalez and another Rite Aid employee. (Id. at ¶¶ 35-38).

Donald J. Krupka, a Rite Aid Human Resource Manager, and Denise Hondorf, the head of the Payroll Department at Rite Aid, provided affidavits describing the payroll procedures at Rite Aid. During 1998, employees weekly hours were transmitted to the payroll department as follows: certain personnel at each Rite Aid store would enter the employee hours worked during that week in the store computer. (Hondorf Aff. at ¶¶ 2-3). Those records were then electronically transmitted to the payroll computer at the payroll department at Rite Aid headquarters in Camp Hill, Pennsylvania prior to midnight of each Saturday of each week. (Id. at ¶ 3). "Upon receipt of the payroll data entry, the payroll would automatically be processed and issued and employee payroll checks would be issued based upon that transmitted data." (Id. at ¶ 4). To change payroll data for an individual employee, someone would need to gain access to payroll data in the retail store's computer — which is password protected — and alter the data before its transmission to the payroll department. (Id. at ¶ 5).*fn2

D. Plaintiff's Disciplinary Record

Gonzalez received one disciplinary write-up while working for Rite Aid, for a dress code violation while working at the Grand Concourse store. (Pl. Dep. Tr. at 30). Gonzalez also had a "heated" argument with the manager of the first Rite Aid store at which he worked. (Id. at 30-31). Gonzalez had left the store to get something to eat, and when he returned to the store, the manager called Gonzalez into his office and "got loud" with him. (Id. at 31). They then "got into a heated argument" and Gonzalez "walked out of the store." (Id.). Gonzalez then saw a police officer walk into the store, and Gonzalez re-entered the store. The police officer told Gonzalez "that he didn't want me in the store, to come back and pick up my check. The co-manager told me look, don't worry about it, pick up your check, come see me; and I left it like that." (Id.). The police did not question Gonzalez, and no charges were filed. (Id. at 34). A few days later, Gonzalez started working at the Rite Aid store in Spanish Harlem. (Id. at 34).*fn3

E. The Promotion

Bunyan made a written recommendation to Mallin that plaintiff be promoted to assistant manager. (Bunyan Decl. at ¶ 43). In addition, Mallin told Gonzalez that he was going to promote him to the position of assistant manager. (Pl. Dep. Tr. at 71-72). In Bunyan's opinion, Gonzalez "was qualified to be promoted to assistant manager or key cashier because Mr. Gonzalez was already unofficially performing all the tasks that an assistant manger or key cashier would perform, except those tasks involving the codes to the registers for overrides and the codes for the safe." (Bunyan Decl. at ¶ 43). The assistant manager position did not require more physical labor than the position of clerk/cashier. (Pl. Dep. Tr. at 70).

To be promoted, Gonzalez had to meet with three people; the Assistant Human Resource Director, the head of Human Resources, and the head of Loss Prevention. (Bunyan Decl. at ΒΆ 46). Gonzalez met with at least two of those individuals, and both informed Bunyan that plaintiff ...

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