United States District Court, E.D. New York
May 25, 2004.
BARBARA LORINZ, Plaintiff,
TURNER CONSTRUCTION COMPANY, Defendants.
The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge
MEMORANDUM AND ORDER
Plaintiff Barbara Lorinz ("Plaintiff") brings this action
against Defendant Turner Construction Company ("Defendant")
alleging violations of the Americans with Disabilities Act,
42 U.S.C. § 12112 et seq. (the "ADA"); the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); the New York
State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the
"NYHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. (the
"NYCHRL"). Currently before this Court is Defendant's motion for
summary judgment. For the reasons stated herein, the motion is
FACTUAL AND PROCEDURAL BACKGROUND
In 1972, Plaintiff began her extensive career with Defendant.
(Pl.'s Rule 56.1 Statement at ¶ H.) In 1987, Plaintiff became a
full time project accountant. (Id.) Prior to her termination,
Plaintiff was a project accountant assigned to the IS-5 School
and New York Hospital of Queens construction projects. According
to Defendant, Plaintiff was responsible for: (1) preparing
monthly bills to clients; (2) preparing critical financial
reports to the corporate office concerning the financial status
of the projects assigned to her; (3) making monthly subcontractor
payments; (4) making monthly vendor payments; (5) doing weekly
payroll administration for Defendant employees at her assigned
projects; and (6) managing the filing of all project related
documents. (Def.'s Rule 56.1 Statement at ¶ 3.)
From 1995 until her termination, Tom Garcia ("Mr. Garcia")
served as Plaintiff's supervisor. (Id. at ¶ 2). From the
beginning of 1996, Plaintiff began to exhibit signs of depression
at work, in which she would cry daily on and off for twenty
minutes and would have difficulty concentrating. (Id. at ¶ 20.)
In April 1996, as part of her performance review, Plaintiff
received counseling and development concerning her computer
skills in the Excel and Eaton computer software programs. (Id.
at ¶ 21). Mr. Garcia was responsible for providing Plaintiff with
individualized computer training in these programs. (Id.)
During Plaintiff's training sessions, Mr. Garcia observed that "[she] would frequently cry and become unable to do
her work." (Id. at ¶ 23.) In July 1996, Mr. Garcia "suggested"
that Plaintiff take time off from work because of her
difficulties. (Id.) On August 1, 1996, Plaintiff's father died.
(Pl.'s Rule 56.1 Statement at ¶ 27.) Following his death,
Plaintiff requested and was given the month of August off.
(Id.) At the end of August, Plaintiff called and requested
additional time off, to which she was given. From September 1,
1996 through March 3, 1997, Plaintiff received benefits and wages
in accordance with Defendant's disability policies. (Id. at ¶
28.) From August 1, 1996 to February 1997, Plaintiff called her
supervisors to report on her medical status. (Def.'s
Rule 56.1 Statement at ¶ 32.) Defendant contends that Plaintiff informed
her supervisors that she was unable to return to work and was
emotional and upset during these conversations. Plaintiff also
submitted medical documentation concerning her mental capacity
and her inability to work. (Pl.'s Rule 56.1 Statement at ¶ 29.)
In February 1997, Plaintiff asked Mr. Garcia if she could
return to work on a part-time basis. (Id. at ¶ 32.) Mr. Garcia
responded that he would get back to her. (Id.) According to Mr.
Garcia, Plaintiff was crying and emotional during this
conversation, and when he asked if she was certain that she could
return to work, Plaintiff stated that she did not know but would
like to give it a try. (Def.'s Rule 56.1 Statement at ¶¶ 34-5.)
Mr. Garcia then returned Plaintiff's call and informed her that
Defendant did not have any part-time positions available and
terminated her employment. (Id. at ¶ 34.) According to
Plaintiff, Mr. Garcia informed her that she was being terminated for lack of work.*fn1 Defendant
maintains that Plaintiff was terminated because she was incapable
of returning to her former position and that no other positions
were available. (Id.) One month later, Defendant hired John
Episcopio ("Mr. Episcopio"), who was born on October 25, 1969, as
Plaintiff's replacement. (Pl.'s Rule 56.1 Statement at ¶ 37.)
Defendant eventually terminated Mr. Episcopio's employment
because of his inability to meet the job requirements. (Id.)
Plaintiff continued to receive disability benefits through June
1999. (Def.'s Rule 56.1 Statement at ¶ 41.)
In July 1997, Plaintiff filed a complaint with the New York
State Division of Human Rights Division alleging disability and
age discrimination. On or about April 2000, after an
investigation, the New York State Division of Human Rights found
that there is probable cause to believe that Defendant engaged in
unlawful discriminatory practices relating to Plaintiff's claims.
On October 12, 2000, Plaintiff filed the instant complaint.
Defendant filed the instant summary judgment motion.
I. Summary Judgment Standard
A moving party is entitled to summary judgment if "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 a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on
the movant to establish the absence of any genuine issue of
material fact. Celotex Corp., 477 U.S. at 323; see also
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18
(2d Cir. 1995).
Once the movant has made a properly supported motion for
summary judgment, the burden shifts to the nonmoving party to
present "significantly probative" supporting evidence showing
that there is a material factual issue for trial. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary
judgment should be granted "against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp., 477 U.S. at 322;
see also Sim v. New York Mailers' Union No. 6,
166 F.3d 465, 469 (2d Cir. 1999).
II. ADA Claim
Plaintiff alleges that Defendant discriminated against her in
violation of the ADA by unlawfully terminating her employment and
by failing to accommodate her disability. The ADA provides that
"no employer covered by the Act shall discriminate against a
qualified individual with a disability because of the disability
of such individual in regard to . . . the discharge of
employees." 42 U.S.C. § 12112(a). "A `qualified individual with a
disability' is an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires." 42 U.S.C. § 12111(8). To establish a prima facie case of discriminatory discharge
under the ADA, an employee must show: (1) that [she] is an
individual who has a disability within the meaning of the
statute, (2) that an employer covered by the statute had notice
of [her] disability, (3) that with reasonable accommodation,
[she] could perform the essential functions of the position
sought, and (4) that the employer has refused to make such
accommodations." Stone v. City of Mt. Vernon, 118 F.3d 92,
96-97 (2d Cir. 1997).*fn2 The Second Circuit has held that
"failure to make a reasonable accommodation, when the employee
has satisfied the first three elements of his claim, amounts to
discharge `because of' his disability." Parker v. Columbia
Pictures Indus., 204 F.3d 326, 332 (2d Cir. 2000) (quoting
Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir.
A. Is Plaintiff disabled?
The ADA defines a disability as either: (1) a physical or
mental impairment that substantially limits one or more of the
major life activities of [an] individual; (2) a record of such an
impairment; or (3) being regarded as having such an impairment.
See 42 U.S.C. § 12102(2). Plaintiff alleges that she satisfies
each of the definitions.
i. Does Plaintiff's impairment substantially limit one or more
of the major life activities?
To determine whether a plaintiff is disabled under the first
subsection of the ADA's definition, the court must: 1) determine
whether plaintiff has an impairment; (2) identify the life
activity upon which plaintiff relies and determine whether it
constitutes a major life activity under the ADA; (3) ask whether
the impairment substantially limited the major activity identified. See
Colwell v. Suffolk County Police Dep't., 158 F.3d 635, 641 (2d
Cir. 1998). Plaintiff alleges that her impairment, consisting of
major depression and anxiety, affected the major life activities
of sleeping, concentrating, socializing, and caring for herself.
Plaintiff alleges that her impairment affected her sleeping
patterns. The EEOC guidelines provide that sleeping is not
substantially limited just because an individual has some trouble
getting to sleep or occasionally sleeps fitfully. See EEOC
Psychiatric Guidance at Q & A 3 n. 16. In Colwell, after noting
that difficulty sleeping is extremely widespread, the Second
Circuit held that a plaintiff must show that his inability to
sleep is substantial. 158 F.3d 635, 644 (2d Cir. 1998). In
granting summary judgment, the Court in Colwell noted that the
plaintiff "made no showing that his affliction is any worse than
is suffered by a large portion of the nation's adult population."
Id. Here, Plaintiff asserts that she had difficulty sleeping at
times and had difficulty waking up in the morning at other times.
Although Plaintiff's sleep patterns were unstable, the Court
finds that they were not significantly restricting as compared to
a large portion of the nation's adult population.
Plaintiff further alleges that she was unable to concentrate
most of the time and was only able to do so when she put her mind
to it. Plaintiff asserts that she constantly had to read things
twice to understand the words. The Court finds that Plaintiff's
assertions regarding her inability to concentrate are not
substantial enough. See Glowacki v. Buffalo Gen. Hosp., 2 F. Supp.2d 346, 351 (W.D.N.Y.
Plaintiff also alleges that she lost her ability to socialize.
Plaintiff asserts that prior to her depression she went out on a
regular basis, however, after her diagnosis her friends and
family had to be force her to go to movies, dinner, or parties.
Assuming that socializing is a major life activity, the Court
finds Plaintiff's assertions insufficient to establish that she
was substantially limited in her social interactions.
d. ability to care for herself
Lastly, Plaintiff alleges that she was not able to care for
herself, to wit, bathing and eating. Plaintiff's temporary loss
of her desire to bath and eat does not rise to the level of ADA
disability. See Herschaft v. New York Bd. of Elections, No.
00-2748, 2001 WL 940923, at *4 (E.D.N.Y. Aug. 31, 2001)
("sporadic lapses in ability to care for oneself does not
constitute a substantial limitation")
Based on the foregoing, the Court finds that Plaintiff has not
established that she has a physical or mental impairment that
substantially limits the major activities of sleeping,
concentrating, socializing, and caring for herself.
ii. Does Plaintiff have a record of disability?
The ADA's definition of disability can also be satisfied by "a
record" of an impairment that substantially limits one or more
major life activities. 42 U.S.C. § 12102(2)(B). For a person to
have a record of disability under the ADA, he or she must have "a history of, or have been misclassified as having, a
mental or physical impairment that substantially limits one or
more major life activities." 29 C.F.R. § 1630.2(k). The intent of
this provision, in part, is to ensure that people are not
discriminated against because of a history of disability. Id.
Plaintiff contends that Defendant had a record of her
disability based on her and her physician's periodic updates
during her leave of absence. Although Plaintiff's and her
physician's updates establish that Plaintiff has a mental
impairment, Plaintiff has not shown that this impairment
substantially limits one or more of her major life activities for
the same reasons that were stated above.*fn3
iii. Did Defendant regard Plaintiff as having an impairment?
"The third way to prove a `disability' within the meaning of
the ADA is to prove that the plaintiff is `regarded as' having an
impairment that substantially limits one or more major life
activities." Colwell, 158 F.3d at 646 (citing
42 U.S.C. § 12102(2)(C)). To be perceived as having a disability turns on the
employer's perception of the employee and is therefore "a
question of intent, not whether the employee has a disability."
Id. (quoting Francis v. City of Meriden, 129 F.3d 281, 284
(2d Cir. 1997)). In Sutton, the Supreme Court explained that an
employee can be "regarded as" disabled in two ways: (1) a covered
entity mistakenly believes that a person has a[n] impairment that
substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual,
nonlimiting impairment, substantially limits one or more major
life activities." 119 S.Ct. 2139, 2149-50 (1999).
Plaintiff claims that Mr. Garcia clearly "regarded her as
having a disability that substantially impaired her ability to
concentrate and to perform work." (Pl.'s Mem. of Law in Opp. to
Summ. Judg. at 15.) Plaintiff points out that it was Mr. Garcia
who told her to take time off and seek professional help based on
his belief that her mental status was affecting her ability to
learn the Excel and Eaton computer programs. Defendant asserts
that Plaintiff only claimed that she was perceived to be disabled
based on it's failure to provide her with part-time work.
Notwithstanding, Defendant contends that Mr. Garcia suggested
that Plaintiff take time off from work and that she welcomed the
idea. Defendant argues that it did not "perceive that Plaintiff
was disabled," rather, "it simply perceived, correctly so, that
it could not employee Plaintiff on a part-time basis." (Def.'s
Reply Brief in Supp. of Summ. Judg. at 9.) Defendant further
argues that regardless of any alleged perception, Plaintiff was
medically unfit to return to work.
Although this is a close issue, the Court finds that Plaintiff
has provided sufficient evidence to establish a prima facie case
under § 12102(2)(c). The Court finds that a genuine issue of
material fact exists as to whether Defendant regarded Plaintiff
as having an impairment that substantially limits the major life
activity of concentrating. The Court relies in large part on Mr. Garcia's
suggestion that Plaintiff take time off from work based on her
inability to concentrate.*fn4
B. Qualified Individual with a Disability
Defendant argues that Plaintiff is not a qualified individual
with a disability because she could not perform the essential
functions of her job with or without an accommodation. See
42 U.S.C. § 12111(8). Specifically, Defendant points out that
Plaintiff: (1) exhibited performance deficiencies that required
her supervisor to provide her with constant computer training
prior to her leave of absence; (2) was found by a doctor to be
unfit for employment in excess of two years; and (3) was crying
and emotional when she requested a part-time accommodation and
stated that she was unsure she would be able to perform her work
if she returned. Defendant further points out that Plaintiff's
treating physician testified that Plaintiff "hadn't achieved
being free significant [sic] of the depression at the time of her
dismissal from her work." (Def.'s Reply in Supp. of Summ. Judg.
at 3.) Plaintiff contends that she had performed the essential
functions of her employment prior to her disability leave and
that she could have continued to do so if she was accommodated
with part-time work. The Court finds that prior to Plaintiff's disability leave in
August of 1996, despite Plaintiff's deficiencies in learning the
computer programs, a genuine issue of material fact exists as to
whether she could perform the essential functions of her job. As
persuasively pointed out by Plaintiff, her ability to perform her
other job duties, to wit, dealing with supervisors,
subcontractors, etc, did not require a proficiency in the Excel
and Eaton computer software programs.
The Court is also aptly aware of the caselaw that provides that
an individual is not qualified for her position if she is unable
to come to work. A review of the record in this case, however,
reveals that Plaintiff consulted with her physician about
returning to work and that her physician stated that she could
return to work if her hours were reduced. Although Defendant
correctly points out that Plaintiff's physician felt that she was
not free from depression, the physician did not completely
preclude the possibility of Plaintiff returning to work on a
With respect to Plaintiff's ability to perform the essential
functions of her job given her uncertainty about returning to
work and her inability to concentrate, as will be discussed in
more detail infra, the Court finds that a genuine issue of
material fact exists as to whether Plaintiff could perform the
essential functions of her job with an accommodation despite her
C. Reasonable accommodation
Plaintiff's bears the both the burden of production and
persuasion that the accommodation she requested was reasonable and would have enabled
her to perform the essential functions of her position. See
Jakan v. New York State Dep't of Labor, 205 F.3d 562, 566-567
(2d Cir. 2000). Reasonable accommodations are "modifications or
adjustments to the work environment or to the manner or
circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position."
29 C.F.R. § 1630.2(o)(1)(ii). The term essential function is
defined as the "fundamental duties to be performed by the
position in question." 29 C.F.R. § 1630.2(n)(1).
The Second Circuit has held that the "duty to make reasonable
accommodations does not require an employer to hold open a
disabled employee's position indefinitely, nor does it require
the employer `to investigate every aspect of an employee's
condition before terminating him based on his inability to
work.'" Parker, 204 F.3d at 338. The ADA does require that when
an employee proposes an accommodation before termination, the
employer is obligated to "investigate that request and determine
its feasibility." Id.
Defendant argues that Plaintiff's request to work on a
part-time basis is unreasonable because there were no part-time
positions available. Defendant cites to numerous cases for the
proposition that "a part-time assignment to a full-time job is
not a reasonable accommodation as a matter of law because it
inevitably requires the elimination or reallocation of essential functions, hiring of
additional staff or transfer of essential functions to other
employees." (Def.'s Mem. of Law in Supp. of Summ. Judg. at.) Even
if it were required to accommodate Plaintiff with part-time
employment, Defendant asserts that Plaintiff has not demonstrate
that she could perform the essential functions of her position.
Plaintiff counters that Defendant employees, including herself,
have routinely performed part-time work in the accounting
department. Defendant notes that "after [her] motor vehicle
accident in the mid 80's, [Defendant] accommodated [her] by
allowing [her] to work part time for at least three months."
(Decl. of Lee Nuwersra, Ex. A at 7.) Here, Plaintiff asserts that
she only requested to be accommodated for a couple of weeks.
Plaintiff further asserts that she suggested that she be assigned
to the IS-5 project for three days out of the central office.
Plaintiff avers that she was never given the opportunity to fully
explain her abilities and condition because Defendant failed to
engage her in the interactive process required under the ADA.
See Jakan, 205 F.3d at 566 ("the ADA envisions an
`interactive process' by which employers and employees work
together to assess whether an employee's disability can be
reasonably accommodated.").*fn5 Defendant argues that Plaintiff's position is not conducive to
part-time work. Defendant further argues that Plaintiff never
requested that she be permitted to serve as project accountant
for the IS-5 project for three days per week. Defendant
"maintains that Plaintiff vaguely requested `part time' in an
unspecified capacity of indefinite duration without any other
specifics." (Def.'s Reply Brief in Supp. of Summ. Judg., at 6 n.
2.) Nonetheless, Defendant alleges that the IS-5 project could
not have been adequately managed by a project accountant working
only three days per week and that to do so, would serve as a
elimination of an essential job functions, to wit, the New York
Hospital of Queens project.*fn6 Moreover, Defendant contends
that given Plaintiffs deficient computer skills and her inability
to concentrate, sleep, and socialize, there is no way that she
could have managed the IS-5 project on a part-time basis.
Defendant further contends that Plaintiff's assertion regarding
past part-time work performed is insufficient because she failed
to describe the facts and circumstances surrounding the
accommodation. As a result, Defendant avers that it has no
probative value in this case. Defendant alleges that it did
engage Plaintiff in an extensive interactive process beginning
with Mr. Garcia's suggestion that she take time off until the
time of her accommodation request. Defendant further alleges that
if the process was incomplete, Plaintiff has not shown that a complete
interactive process would have resulted in her continued
employment as it is undisputed that her mental status remained
unchanged and that there were no part-time positions available.
Defendant repeatedly argues that Plaintiff was unable to work
because "she was not medically qualified to work in any capacity"
due to her inability to concentrate, etc. (Def.'s Reply Brief in
Supp. of Summ. Judg. at 2.) Defendant points out that "at the
time she made her accommodation request and for almost three
years thereafter, Plaintiff was not medially fit to return to
work." (Id. at 3.) As evidence of Plaintiff's inability to
work, Defendant points out that Plaintiff often was emotional
when she reported on her mental status and physician's reports
were submitted acknowledging her inability to work. Although the
weight of this evidence appears overwhelming, a closer review of
the record reveals that a genuine issue of material fact exists
as to whether Plaintiff was incapable of working. As stated
above, although Plaintiff's treating physician expressed doubt
regarding whether she was free from depression, he did not
preclude the possibility of Plaintiff returning to work on a
part-time basis. In fact, he and Plaintiff discussed the
possibility of her return to work and determined that it was
feasible under the appropriate conditions.
Although this is an extremely close case and the Court finds
that Defendant's arguments are not specious, after carefully
examining the record and arguments presented, particularly
Plaintiff's assertions regarding past part-time work performed, her physician's view that she could return to work if given
reduced hours, and the dispute as to whether she requested to
work at IS-5 part-time, the Court finds that a genuine issue of
material fact exists regarding whether, with an accommodation of
part-time employment, Plaintiff would have been capable of
performing the essential functions of her job.*fn7
III. Disability claims under NYHRL
The elements of a prima facie case are also applicable under
the NYHRL.*fn8 See Reeves v. Johnson Controls World
Servs., Inc., 140 F.3d 144, 154-57 (2d Cir. 1998). Because
Plaintiff has established a prima facie case under the ADA, she
therefore has established a prima facie case of discrimination
under the NYHRL. This is especially true given that the
definitions of disability are broader under the New York statutes
than the ADA. Id.
IV. Age Discrimination Claim
To establish a prima facie case of age discrimination, the
Plaintiff must show (1) that she was in the protected age group;
(2) that she is qualified for the position; (3) that she was
discharged; and (4) that the discharge occurs under circumstances
giving rise to an inference of discrimination.*fn9 Plaintiff argues
that she was qualified for the position because she worked for
Defendant for over twenty-five years and received favorable
performance reviews. Plaintiff further argues that an inference
of discrimination exists because she was replaced by a
twenty-four year old man. Defendant contends that Plaintiff fails
to show that she was qualified for the position and that her
discharge occurred under circumstances giving rise to an
inference of discrimination. The Court need not address
Defendant's first argument because it finds that Plaintiff failed
to show an inference of discrimination. The Second Circuit has
held that the replacement of an older worker with a younger
cannot, in itself, evince age discrimination. See Norton v.
Sam's Club, 145 F.3d 114, 119-20 (2d Cir. 1998).
For the reasons stated herein, this Court denies Defendant's
motion for summary judgment.