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LORINZ v. TURNER CONSTRUCTION COMPANY

May 25, 2004.

BARBARA LORINZ, Plaintiff,
v.
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 DENIED.

  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.

  DISCUSSION

  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. 1998)).

  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. § ...


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