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United States District Court, Southern District of New York

April 2, 2003


The opinion of the court was delivered by: Gerard E. Lynch, United States District Judge


Plaintiff Jason Taylor ("plaintiff' or "Taylor") brings this suit against his former employer, Lenox Hill Hospital ("defendant" or "the Hospital"), alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (2000), the New York State Human Rights Law ("NYCHRL"), New York Executive Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), Administrative Code of the City of New York, § 8-101 et seq. He asserts that the Hospital failed to accommodate his disability, discriminated against him on the basis of his sex and disability, and retaliated against him after he asserted his rights under the ADA. The Hospital now moves for summary judgment on all of the claims. The motion will be granted with respect to all federal claims.


Plaintiff is a registered nurse who was employed as a Staff Nurse in defendant's Cardiac Care Unit ("CCU") from 1995 through 1998. (Compl. ¶ 7.) He was responsible for caring for critically ill cardiac patients, which among other duties involved turning the patients over in bed, helping them to walk, and lifting them. (Taylor Dep. at 33-36; Bodee-Isidore Aff. ¶ 5.) On January 18, 1998, Taylor was injured when a patient grabbed on to his left shoulder in the process of sitting up in bed. (Compl. ¶ 12.) He promptly visited Dr. Richard Rho, who diagnosed him with a cervical spine injury and provided the Hospital with a note indicating that he should not lift more than forty pounds. (Brown Aff. Ex. I.) On January 20, the Hospital placed plaintiff on a medical leave of absence, and in February, he submitted a Medical Certification Form for Medical and Family Leave ("FMLA form"), on which Dr. Rho indicated that he could lift no more than thirty pounds. (Id. Ex. J.) Because lifting and otherwise supporting ill patients is a large part of a Staff Nurse's daily activities (Kilfeather Dep. at 93-94), Dr. Rho was of the opinion that plaintiff could not work as a nurse. (Rho Dep. at 20.)

In early 1998, plaintiff filed a claim for, and received, workers' compensation benefits. (Brown Aff. Ex. M.) The Hospital's workers' compensation carrier, Lovell Safety Management, continued to pay plaintiff throughout the year, although it did reduce his payments around March 1998. (Bodee-Isidore Dep. at 52-53.) In October, Lovell requested that the Hospital approve surveillance of Taylor in order to determine whether he was truly entitled to the benefits he was receiving, and the Hospital approved video surveillance on October 6. (Nayberg Affirm. Ex. A-2.) Lovell apparently suspected that Taylor might be working elsewhere during his leave from the Hospital, because its physicians had determined that Taylor was only mildly disabled, and he had not complained when his benefits were reduced in March. (Id.) Nothing in the record indicates the results of the surveillance.

In May, Taylor submitted a second FMLA form, and the Hospital extended his medical leave through June. (Brown Aff. Ex. K.) At that time. Lourdes Blanco, the Hospital's Benefits Coordinator, wrote to Taylor to inform him that, upon his return to work on June 20, he would be expected to submit a Fitness For Duty form, in which his physician was to indicate the conditions under which Taylor would be able to work. Blanco enclosed the form in the letter. (Id. Ex. L.) The Hospital's procedure was to require an employee returning from a medical leave of absence to submit the Fitness For Duty form, listing any restrictions that she might have. (Bodee-Isidore Aff. ¶ 6.) Once the form was submitted, one of the Hospital's physicians would examine the employee to determine whether she would be able to perform her job with or without an accommodation. In the event that the Fitness For Duty form indicated that the employee's condition would require a transfer to a different job, the Hospital would use the form to determine what positions she might be able to fill. (Id. ¶¶ 7-10.) Taylor never submitted the Fitness For Duty form, however, allegedly because Mary Ann Bodee-Isidore, the Director of Employee and Labor Relations, had told him that he could not return to work so long as there were any restrictions on his ability to lift. (Taylor Dep. at 61; 178-79.) He did not return to work in June (Pl. Mem. at 2), although there is no record of his FMLA leave having been further extended. Nonetheless, the Hospital apparently considered Taylor to be on continued medical leave until his eventual resignation. (Nayberg Affirm. Ex. A-28.)

The next communications between Taylor and the Hospital took place in September and October, when Taylor had a series of conversations with Bodee-Isidore and Marge Kilfeather, the Assistant Director of Nursing for Labor Relations. In these conversations, Taylor repeatedly asked whether he could return to his nursing position even though he was unable to lift more than forty pounds. (Pl. Mem. at 19; Kilfeather Dep. at 43-47; Bodee-Isidore Dep. at 35-42.) Both women advised him that since lifting was an intrinsic part of a Staff Nurse's duties, he should talk to the Hospital's Human Resources Department about available non-nursing positions. (Kilfeather Dep. at 43-47.) Taylor never did so. (Taylor Dep. at 123-24.) He alleges that, during one of these conversations, Bodee-Isidore told him that he would not be allowed to return to work until he was "100% fit," and that being unable to lift rendered him incapable of performing CPR, a requirement for all nurses. (Taylor Aff. ¶ 4.)

In early October, plaintiff contacted the EEOC, and informed Blanco that he had been in touch" with the agency.*fn1 (Id. ¶ 5.) On November 14, he wrote to Bodee-Isidore, stating that the Hospital had not allowed him to return to work because an independent consulting physician, who had examined him for workers' compensation purposes, had deemed him "25% disabled." (Brown Aff. Ex. N.) Taylor asserted that, even with his lifting requirement, he was able to "perform the essential functions of [his] job . . . according to the responsibilities outlined in the job description . . . for a Registered Nurse" (Id.), since the Hospital's Staff Nurse job description did not specifically state that lifting of any sort was part of a nurse's duties (id. Ex. R). He requested that he be allowed to "return to work with a reasonable accommodation according to the guidelines of the Americans With Disabilities Act." (Id. Ex. N.) Specifically, he asked for "an administrative accommodation to be transferred to a Registered Nurse position . . . that does not involve lifting of more than 40 pounds." (Id.)

Bodee-Isidore did not reply until November 30. at which point she sent Taylor a letter indicating that the Staff Nurse job description on which he had relied had recently been revised. (Id. Ex. O.) Since the new job description required that all Staff Nurses be able to lift at least fifty pounds (id. Ex. S), Bodee-Isidore stated that "[i]t is an essential function of the RN position to be able to lift over 50 pounds. Employers are not required to provide an accommodation that would, in essence, relieve them of an essential function of the job)' (Id. Ex. O.) She also noted that Taylor's own physician, Dr. Rho, had not yet "cleared" him to return to work (presumably because Taylor had not submitted the Fitness For Duty form in which his doctor would have indicated whether or not he thought that Taylor was healthy enough to return to work), and that the "impartial consultant physician exams rendered you as mild, partial disability . . . [and] has not recommended a return to work date." (Id.)

The new job description to which Bodee-Isidore referred had become effective on November 11. Unlike the previous description, it lists several physical demands of the position, along with their relative frequency. stating that nurses must be able to lift "more than 50 lbs." at least once an hour. (Id. Ex. S.) According to the Hospital, the new description was the product of its two-year process of reevaluating all of its job descriptions, in light of the standards and recommendations of the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO"). (Kilfeather Dep. at 72-76.) The stated purpose of the modification was to implement objective benchmarks that would measure clinical competency, since the JCAIHO had recommended that job descriptions should contain more quantitative requirements. (Id. at 72-73.) Since the JCAHO was to examine the Hospital in December 1998, the Hospital completed its job descriptions in November so that the JCAHO could analyze them when it arrived. (Id. at 73.)

There does not appear to have been further discussion between Taylor and Bodee-Isidore regarding his request for an accommodation. In January 1999, the Hospital wrote to Taylor to request that he fill out another FMLA leave form. By a letter dated February 19, 1999, Taylor resigned from his position, citing "the continued refusal of Lenox Hill Hospital to provide, suggest, discuss, or even consider a reasonable work accommodation." (Brown Aff. Ex. Q.) This suit followed.


Taylor asserts twelve claims for relief, resting on five theories of discrimination. First, he alleges that the Hospital violated the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law, by failing to provide reasonable accommodation for his disability. Second, he alleges that the Hospital discriminated against him because it regarded him as disabled, in violation of all three statutes. Third, plaintiff asserts that the Hospital discriminated against him on the basis of his disability within the meaning of the ADA by employing a standard or test that tends to screen out people with disabilities. Fourth, he asserts that the Hospital retaliated against him after he contacted the EEOC, in violation of the ADA, NYSHRL, and NYCHRL. Finally, Taylor claims that the Hospital discriminated against him on the basis of his sex, in violation of the NYSHRL and NYCHRL, because it accommodated pregnant nurses' lifting restrictions.

Defendant moves for summary judgment on all of plaintiff's claims, asserting that Taylor is not disabled within the meaning of the ADA, and that plaintiff's failure to follow the Hospital's procedures for returning from medical leave provides a legitimate reason for the Hospital's actions, and forecloses all of the remaining disability claims. Def. Mem. at 5.) The Hospital also argues that Taylor's sex discrimination claim must fail because he was not similarly situated to female nurses who were given lifting accommodations during their pregnancies. (Id. at 23-25.) Plaintiff opposes the motion, arguing that the Hospital discouraged him from submitting the required form, and that factual issues prevent the dismissal of all of his claims. (Pl. Mem. at 6.)

I. Summary Judgment Standard

Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(b). The party opposing summary judgment "may not rest upon mere allegations or denials," rather it must "set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). The non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, to defeat summary judgment, she must set forth "concrete particulars" showing that a trial is needed. R.G. Group. Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).

Summary judgment should be granted sparingly in employment discrimination cases, as "intent and state of mind are at issue," raising the possibility that "careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). In addition, credibility is a particularly important issue in discrimination cases, and "doubts about the credibility of an affidavit or deposition are generally left to the factfinder." Brock v. Wright, 315 F.3d 158, 161 (2d Cir. 2003). Thus, summary judgment should be granted only if there is no evidence in the record that could reasonably support a jury verdict for the non-moving party. Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

II. Plaintiffs Claims Under the ADA

Plaintiff brings four claims for disability discrimination under the ADA. Three out of the four theories of disability discrimination — failure to accommodate, discrimination because of his disability, and the use of standards that screen out disabled people — require that plaintiff have a disability within the meaning of the ADA in order to invoke its protections. See Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997) (stating prima facie case for failure to accommodate claim); Reeves v. Johnson Controls, 140 F.3d 144, 149-50 (2d Cir. 1998) (stating prima facie case for disability discrimination claim); O'Neal v. City of New Albany, 293 F.3d 998, 1010 (7th Cir. 2002) (holding that plaintiff could not state a claim for use of a discriminatory employment policy under 42 U.S.C. § 12112 (b)(6) without having a disability within the meaning of the ADA). Because plaintiff has not presented evidence from which a rational juror could conclude that he has a disability within the meaning of the ADA, these three claims must be dismissed.

A. Disability Under the ADA

The ADA defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," or "being regarded as having such an impairment." 42 U.S.C. § 12102 (2) (2000). For an impairment to he substantially limiting, it must significantly restrict the manner in which an individual can perform a major life activity, in comparison with the average member of the general population. Reeves, 140 F.3d at 150 (citing 29 C.F.R. § 1630.2 (j)(1)(ii)). Plaintiff argues that he had a disability because his injury substantially limited him with respect to lifting and working (Pl. Mem. at 12-15), both of which constitute major life activities under the ADA, or in the alternative, that the Hospital regarded him as so limited. Colwell v. Suffolk Cty. Police Dep't, 158 F.3d 635, 642-43 (2d Cir. 1998).

Plaintiff's lifting restriction clearly does not constitute a disability under the ADA, because the inability to lift over forty pounds is not a substantial limitation. Since the average person in the general population may not be able to lift forty pounds or more, Taylor's lifting ability is not substantially restricted in relation to that of most people. See, e.g., Strassberg v. Hilton Hotels Corp., No. 95 Civ. 6235, 1997 WL 531314 (S.D.N.Y. Aug. 28, 1997), affd, 173 F.3d 846 (2d Cir. 1999). With respect to the activity of working. in order to be substantially limited in the ability to work, an individual must be unable to perform a broad class of jobs, not simply a single job or type of job. Colwell, 158 F.3d at 643 (2d Cir. 1998). Since many jobs do not require lifting over forty pounds, Taylor is not substantially limited in his ability to work.

Plaintiff next argues that he has a disability because the Hospital regarded him as disabled with respect to lifting or working. EEOC regulations define being regarded as having a disability as, in relevant part, having "a physical or mental impairment that does not substantially limit a major life activity but is treated by [an employer] as constituting such limitation." 29 C.F.R. § 1630.2(1). Since employers are often aware of an employee's physical restrictions, plaintiff may not rest on conclusory allegations that the Hospital considered him disabled or unqualified for the position at issue because of his limitation, but must present evidence that tends to show that defendant perceived him as substantially limited in a major life activity. Reeves, 140 F.3d at 153-54.

Plaintiff has not proffered any evidence that the Hospital regarded him as substantially limited in his ability to work. It is undisputed that the Hospital knew of plaintiffs forty-pound lifting limit, and that it considered him unable to fulfill the duties of a Staff Nurse because of it. (Brown Aff. Ex. O.) There is no evidence, however, that the Hospital considered Taylor substantially limited in relation to the average person; in fact, the evidence suggests that the Hospital considered the lifting restriction only mildly limiting. In her letter to plaintiff, Bodee-Isidore stated that plaintiff had a "mild, partial disability" (id.), and the Hospital approved surveillance of the plaintiff precisely because his disability was mild enough that he was suspected of working elsewhere (Nayberg Affirm. Ex. A-2).

Since being disabled with respect to working requires that an individual be unable to perform a broad range of jobs, the Hospital would have had to consider Taylor unable to work at most jobs, rather than simply disqualified from working as a Staff Nurse. Beason v. United Technologies Corp., 213 F. Supp.2d 103, 111-12 (S.D.N.Y. 2002). While there is evidence that Bodee-Isidore and Kilfeather told plaintiff that he would be unable to work as a nurse as long as he was unable to do heavy lifting (Taylor Dep. at 56; Kilfeather Dep. at 44), both suggested to plaintiff that he investigate vacant non-nursing positions. (Bodee-Isidore Dep. at 36; Kilfeather Dep. at 46.) Thus, while the Hospital may have viewed plaintiff as unfit for any job that required heavy lifting, it clearly did not regard him as incapable of performing most jobs. Beason, 213 F. Supp.2d at 112-15 (surveying cases and concluding that to be regarded as disabled, employee must be viewed as unable to perform a range of jobs that vary widely in the degree of exertion required).

Because plaintiff does not have a disability within the meaning of the ADA, his claims under the ADA of failure to accommodate, discrimination because of his disability, and use of a discriminatory standard, must be dismissed.

B. Retaliatory Job Action

Plaintiffs remaining ADA claim is based on the theory that the Hospital's implementation and enforcement of the fifty-pound lifting requirement constituted retaliation for his requests for an accommodation and his contact with the EEOC. (See, e.g., Compl. ¶ 78.) The fact that plaintiff was not actually disabled within the meaning of the ADA does not affect his retaliation claim, since the statute requires only that he have contacted the EEOC with the good-faith belief that the Hospital's conduct was unlawful under the ADA. Treglia v. Town of Manlius, 313 F.3d 713, 791 (2d Cir. 2002); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). Here, the evidence would permit a factfinder to conclude that plaintiff subjectively believed both that he was disabled under the ADA (Brown Aff. Ex. N), and that the Hospital was wrongfully refusing to accommodate his disability (Taylor Aff. ¶ 5). The Hospital has not argued that Taylor contacted the EEOC in bad faith, or that his belief that he was disabled under the ADA was in any way unreasonable.

Claims of retaliation under the ADA are analyzed under the burden-shifting framework used for Title VII retaliation claims. Treglia, 313 F.3d at 719. To establish a prima facie case, plaintiff must proffer evidence tending to show that "(1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity." Id. Once the plaintiff establishes a prima facie case of retaliatory action, the burden shifts to the employer to put forth a legitimate, nondiscriminatory reason for the employment action at issue. If the defendant carries its burden, any inference of discrimination drops out, and the plaintiff must establish that the legitimate reason is pretextual. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to establish pretext. Fisher v. Vassar College, 114 F.3d 1332, 1333 (2d Cir. 1997) (en banc). Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff."` Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (citing Reeves v. Sanderson Plumbings Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000)).

Plaintiff has presented sufficient evidence to establish a prima facie case of retaliation. He contacted the EEOC in October 1998, for advice concerning the Hospital's position that he could not return to work until he was completely recovered. (Taylor Aff. ¶ 5.) Shortly thereafter, plaintiff told Lourdes Blanco, the Hospital's Benefits Coordinator, that he had been in touch with the EEOC, which constitutes a protected activity, and that he was requesting a reasonable accommodation under the ADA. (Id.) She allegedly stated that she would tell her supervisor that Taylor had talked to the EEOC. (Id.) There is no evidence in the record as to whether Blanco ever relayed the conversation to anyone else in the Hospital. Blanco's knowledge is sufficient to satisfy the knowledge requirement of the prima facie case, however, as all that is necessary is that the Hospital, as a corporate entity, know of plaintiff's protected activity. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).

With respect to the third element of the prima facie case, the Hospital argue s that the implementation and enforcement of the lifting requirement did not constitute an adverse employment action (Def. Mem. at 21-22), but the enforcement of the requirement led directly to the Hospital's refusal to consider plaintiff's two suggested accommodations. In his discussions with the Hospital during the fall of 1998, plaintiff suggested two possible accommodations: reinstatement in his CCU Staff Nurse position, with the understanding that he would not have to lift over forty pounds (Taylor Aff. ¶ 12), or transfer to another position that would allegedly require less lifting (Brown Aff. Ex. N). The Hospital refused both of these accommodations, as indicated by Bodee-Isidore's November 30 letter to Taylor,*fn2 specifically because Taylor had admitted that he would be incapable of fulfilling the fifty-pound lifting requirement. This refusal constitutes an adverse action with respect to the terms and conditions of plaintiffs employment, since it prevented plaintiff from returning to work. See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).

Finally, a jury could infer a causal connection between the protected activity and the adverse action based on the close temporal proximity of the two events. Treglia, 313 F.3d at 720-21 (holding that temporal proximity alone could establish the requisite causal connection for purposes of the prima facie case). Since Taylor complained to the EEOC in October and the Hospital put the lifting requirement into effect, and enforced it against him, in November, the temporal proximity would permit a jury to infer a causal connection between his EEOC contact and the failure to accommodate him.

The Hospital has proffered legitimate nondiscriminatory reasons for its creation and enforcement of the lifting requirement. The Hospital offers testimony that it developed the requirement to comply with JCAHO recommendations (Bodee-Isidore Dep. at 100-01; Kilfeather Dep. at 73-74), and enforced it against Taylor because the Hospital considered the new requirement to be an essential function of all Staff Nurse positions. The Hospital contends that exempting Taylor from the requirement would have been an unreasonable burden, because the lifting requirement embodies an essential function of all nursing positions, and that therefore Bodee-Isidore enforced the requirement against him in the belief that doing so would not violate any disability statutes. (Def. Mem. at 15-16; Brown Aff. Ex. O.) Taylor argues that these reasons are pretextual because the Hospital selectively enforced the requirement against him, and because the fact that the Hospital set the requirement ten pounds over plaintiff's lifting capability indicates that it may have developed the requirement itself in retaliation against him. (Compl. ¶ 78; Pl. Mem. at 24.)

Plaintiff's most persuasive evidence to this effect is that the Hospital does not appear to have enforced the new requirement in a broad-based way. The Hospital did not test other current or prospective employees for their ability to lift fifty pounds (Bodee-Isidore Dep. at 115; Hurley Aff. ¶ 3), and at least one CCU Nurse was not even aware of the new requirement (Hurley Aff. ¶ 3). This could suggest to a reasonable juror that the Hospital was selectively enforcing the requirement against Taylor, casting doubt on the legitimacy its use of the requirement to avoid accommodating him. On the other hand, there is no evidence that the Hospital would not have acted similarly had another nurse, like Taylor, affirmatively informed it that she could not fulfill the lifting requirement. The formal, quantitative standard was new, weakening any inference from the absence of other cases enforcing it. At the same time, the vaguer requirement that nurses be able to engage in heavy lifting indisputably was an attribute of the job long before the adoption of the specific standard; indeed, Taylor's inability to perform that function was the reason he sought and was granted leave from his job in the first place. This fact significantly undercuts any inference that the lifting requirement was not genuine.

At any rate, even if plaintiff's evidence of selective enforcement casts doubt on the veracity of the Hospital's justification, it does not raise an inference of retaliatory intent. Because "proof that the employer's explanations were false would not necessarily constitute affirmative evidence that the real reason was prohibited discrimination," in order to successfully rebut the employer's evidence of legitimate reasons, a plaintiff alleging discriminatory retaliation must present evidence from which a factfinder could conclude that the adverse employment action was in fact motivated by retaliatory intent. Collette v. St. Luke's Roosevelt Hospital, No. 99 Civ. 4864 (GEL), 2002 WL 31159103, at *3 (S.D.N.Y. Sept. 26, 2002) (discussing James v. New York Racing Assoc., 233 F.3d 149, 154 (2d Cir. 2000), and its requirement that plaintiff produce evidence of discrimination in addition to the evidence sufficient to satisfy the minimal prima facie case); see also Morris v. City of New York, 153 F. Supp.2d 494, 500-01 (S.D.N.Y. 2001) (noting that evidence of falsity of employer's justification is not enough to withstand summary judgment, absent evidence of discrimination). Here, plaintiff has proffered no evidence that suggests that the Hospital's enforcement of the requirement against him was in any way related to the fact that he had recently contacted the EEOC.

Taylor also suggests that the requirement itself was developed and added to the Staff Nurse job description in retaliation against him. (Compl. ¶ 78.) This claim is speculative at best; while plaintiff states that he suspects that the Hospital "purposely changed the job description to include a weight lifting requirement that was ten pounds . . . over my doctor's recommendation" (Taylor Dep. at 160), he does not proffer any evidence to support this theory. The Hospital has presented testimony that the job description was changed to comply with JCAHO recommendations (Bodee-Isidore Dep. at 100-01; Kilfeather Dep. at 73-74),*fn3 and although plaintiff points out that defendant has not produced the JCAHO recommendations themselves (Pl. Mem. at 3), he has not suggested a reason to doubt the Hospital's explanation and its employees' sworn testimony. In addition, he does not contest the Hospital's assertions that the lifting requirement on its face applies to 800 Staff Nurses (Def. Mem. at 23), was created as part of a process that took roughly a year, starting before plaintiff was injured (Kilfeather Dep. at 74), and is only one of many physical and other requirements that were quantified for the first time in the new job description (Brown Aff. Ex. S).*fn4 Thus, there is simply no evidence in the record from which a jury could infer that the Hospital created the requirement with the intent of enforcing it against Taylor to retaliate for his contact with the EEOC.

Taylor's remaining argument as to pretext is essentially that the Hospital exhibited reluctance — an "adverse disposition" — to allow Taylor to return to work, suggesting that the fifty-pound lifting requirement was simply an excuse to keep Taylor from returning. (Pl. Mem. at 25.) Plaintiff argues that the Hospital betrayed this reluctance when it authorized surveillance of him at the beginning of October 1998, even though Taylor's conversations with Kilfeather and Bodee-Isidore should have alerted the Hospital that Taylor was truly disabled and eager to come back to work. (Id.) The evidence in the record establishes, however, that the surveillance was authorized at the request of the Hospital's workers' compensation carrier, and that the purpose of the investigation was to verify that plaintiff was not working elsewhere while continuing to accept workers' compensation from the Hospital's carrier. (Nayberg Affirm. Ex. A-2.) Although the Hospital authorized surveillance relatively infrequently (Bodee-Isidore Dep. at 54), it had used it in the past, in similar situations. (Id.) In addition, there is no evidence suggesting that plaintiff was harmed by the surveillance, that the Hospital took any adverse actions because of it, conducted it to harass plaintiff, or that it played a role in the Hospital's alleged refusal to transfer him. No rational juror could conclude that the surveillance, even assuming that it took place after the Hospital knew of plaintiff's EEOC contact, suggests that the Hospital intended to retaliate against Taylor.

Taylor has failed to show that the Hospital's proffered nondiscriminatory reasons were pretexts for retaliating against him. First, his prima facie case is weak. The causal connection between Taylor's activity and the adverse action relies entirely on the temporal proximity of the two events, rather than on any suspicious circumstances or comments made by Hospital officials. Second, Taylor has not presented any evidence tending to show that Bodee-Isidore or any other Hospital decision-makers intended to retaliate against him. It is not even clear that any decisionmakers, other than Blanco, had knowledge of his discussions with the EEOC, or that the employees responsible for developing the new job description even knew who he was. The various facts Taylor cites in support of his failure to accommodate and discrimination claims do not suggest that the Hospital took any actions because of Taylor's conversations with the EEOC. Thus, summary judgment must be granted with respect to Taylor's ADA retaliation claim. See Collette, 2002 WL 31159103, at *10 (stating that where plaintiff has established "minimally adequate" prima facie case and proffered weak evidence of pretext, no inference of retaliatory intent was raised).

III. Plaintiff's State Claims

Taylor also brings several state and municipal claims for disability discrimination, based on the same theories as his ADA claims, and for sex discrimination. Having dismissed all of the claims over which this Court has original jurisdiction, however, it is unnecessary to reach the merits of the state claims. The statute governing federal supplemental jurisdiction, 28 U.S.C. § 1367, provides courts with discretionary authority to dismiss remaining state claims when all federal claims have been dismissed prior to trial. 28 U.S.C. § 1367 (c)(3) (2000). Indeed, the Second Circuit has held that "[i]n general, where the federal claims are dismissed before trial, the state claims should be dismissed as well," Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (internal citations omitted), since "the appropriate analytic framework to be applied to discrimination claims . . . as defined by New York state and municipal law is a question best left to the courts of the State of New York." Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001).


For the reasons set forth above, defendant's motion for summary judgment is granted as to all claims under the ADA. Plaintiff's remaining state claims are dismissed pursuant to 28 U.S.C. § 1367 (c)(3).


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