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.
Construed in the light most favorable to plaintiff, the facts are as
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).
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
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 ¶ 46). Gonzalez met with at least
two of those individuals, and both informed Bunyan that plaintiff ...