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PICINICH v. UNITED PARCEL SERVICE

June 15, 2004.

Richard M. Picinich, Plaintiff,
v.
United Parcel Service, Jim Grover, Brendan Canavan, Jeffrey Wilson and United Parcel Service of America, Inc., Defendants.



The opinion of the court was delivered by: NEAL McCURN, Senior District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

  Plaintiff, Richard M. Picinich ("Picinich") brings this suit against United Parcel Service ("UPS"), United Parcel Service of America, Inc. ("UPS of America"), Jim Grover ("Grover"), Brendan Canavan ("Canavan"), and Jeffrey Wilson ("Wilson"), alleging violations of the Americans with Disabilities Act ("ADA") and New York Human Rights Law ("NYHRL").*fn1 Presently before the court is the defendants' motion for summary judgment dismissing the entire complaint. Also before the court is a motion for partial summary judgment by the plaintiff. Oral argument was heard regarding the pending motions on December 22, 2003 in Syracuse, New York. Decision was reserved.

  II. BACKGROUND

  Picinich began his employment with defendant UPS in 1976. From 1982 until 1991, he held various management level positions which required him to supervise operations at different UPS facilities, primarily in New Jersey. Picinich was promoted to Security Manager in June 1991, and UPS relocated him to its Upstate New York District ("Upstate N.Y. District"), where he continued as a Security Manager until June 1999. The Security Manager position required that Picinich work out of Syracuse, New York and complete security responsibilities in an area spanning from the New York-Canadian border to the north, Albany, New York to the east, and Binghamton, New York to the south.

  On July 1, 1999, Picinich was reassigned to a new position, entitled District Damage Coordinator, in the Damage Recovery Group of the Upstate N.Y. District. In November 1999, Picinich was temporarily assigned to an operations management position in Utica, New York, entitled Preload Manager, and in December 1999, he was notified that the assignment was permanent. Picinich objected to this assignment for reasons unrelated to the present motions, and elected to challenge same through the "Employee Dispute Resolution" ("EDR") process at UPS. As the first step of EDR, Picinich met with Doye Lux, the District Manager at that time, and defendant Grover on January 7, 2000 to ask that he be placed back on his career path in the area of security. Picinich also requested a "peer review" hearing with a committee, which included two representatives selected by him and one selected by UPS. The hearing, held on March 2, 2000, resulted in a decision by the committee that Picinich's reassignment to the Preload Manager position was appropriate. See Aff. of Jonathan J. Harper, Oct. 8, 2003 at Ex. 3, Dkt. No. 40.

  Prior to the hearing, on January 20, 2000, Picinich "called out" from work due to a back condition, for which he had been receiving medical treatment for approximately three weeks. See Pl.'s Ex. D, Dep. of Richard Picinich, Feb. 24, 2003 ("Picinich Dep. I") at 204:20-205:14, Dkt. No. 45.*fn2 A review of Picinich's deposition transcript indicates that he testified to experiencing back pain while at work in the early morning on January 20, 2000, that he called Dr. J. Christopher Stringer on the same day and was told not to go into work that evening, as his shift was to begin at approximately 9:00 p.m. on January 20, 2000 and end in the early morning of January 21, 2000. On February 1, 2000, Picinich began short-term disability leave, which included continuation of his full salary,*fn3 after Dr. Jeffery Kahn, to whom he was referred by Dr. Stringer, notified UPS that Picinich could not return to work due to a back injury. Dr. Kahn issued a physician's note on January 21, 2000 which stated that Picinich was "temporarily totally disabled" until further notice.*fn4 See Harper Aff. at Ex. 4, Dkt. No. 40. Dr. Kahn issued a report after Picinich's January 21, 2000 office visit, wherein he stated that "it is contraindicated for [Picinich] to perform the type of work that he does, given the fact that he has a subacute disc herniation, and with the minimum of two hours of sitting per day in traveling from Syracuse to Utica that is required for his job. I am going to provide him with an out of work note until further notice." Id. at Ex. 5. On March 10, 2000, Dr. Kahn diagnosed Picinich with "multilevel lumbar disc herniations with radiculopathy" and stated that the work restrictions in place at that time should not be modified. See Pl.'s Ex. 6, Dkt. No. 45.

  On March 15, 2000, Picinich underwent an independent medical examination ("IME") at the request of CIGNA, the then administrator of disability benefits for UPS. Defendants contend that Dr. W. David Ferraraccio, the orthopedic surgeon who conducted the IME, concluded that Picinich "could return to the pre-load within certain medical restrictions." See Defs.' Statement of Material Facts at ¶ 29, Dkt. No. 38. In fact, as Picinich correctly notes, the IME report indicates that he "cannot return to his previous employment with the degree of lifting, bending, and stooping involved." Dr. Ferraraccio further stated in this report that "[i]f work were available where [Picinich's] lifting could be limited to no more than 10 to 12 pounds on an occasional basis where he did not have to bend, twist, stoop, push or pull repetitively, and where he had complete freedom to change position from sitting to standing at will, I would feel this to be satisfactory." See Harper Aff. at Ex. 6, Dkt. No. 40. Dr. Kahn informed CIGNA on March 27, 2000 that after review of Dr. Ferraraccio's report, he agreed that Picinich could return to his previous job only if his work were modified appropriately and that he could not return to his previous job with the degree of lifting, bending and stooping involved. See Pl.'s Ex. 10, Dkt. No. 45. By letter dated March 31, 2000, CIGNA notified Picinich that it recommended immediate termination of his wage continuation benefits because, based on the reports of Drs. Ferraraccio and Kahn, UPS determined "that they are able to make reasonable accommodations in order for [Picinich] to successfully return to work." See Pl.'s Ex. 11, Dkt. No. 45.

  On April 3, 2000, Dr. Kahn notified CIGNA that Picinich could return to work with the following restrictions: no bending or lifting below the waist, no more than 30 minutes of standing or walking, no lifting in excess of 10 pounds between waist and shoulder level, no kneeling, stooping, bending, climbing or twisting, and no driving more than 30 minutes. See Pl.'s Ex. 12, Dkt. No. 45. Dr. Kahn also stated that he expected the aforementioned restrictions would remain on a permanent basis, and that considering, among other factors, the driving distance between Picinich's home and the UPS location where he last worked, Picinich "could not return to his work activities" as Kahn understood them to be offered at that time. See id.

  UPS requested a meeting with Picinich to discuss his return to work, and on April 7, 2000, Picinich met with four UPS representatives, including Registered Nurse Robin Fey, Occupational Health Manager for the Upstate N.Y. District, and defendant Grover, and reviewed his work restrictions. During that meeting, Picinich was told to work within his restrictions, and that a part time Preload Supervisor would be available to assist him. On April 10, 2000, Dr. Kahn issued a formal release for Picinich to return to work within the restrictions he outlined for CIGNA on April 3, 2000.

  Picinich contends that he returned to work as the Preload Manager at the UPS facility in Utica in the evening of April 11, 2000 and worked "for three or so days" until Dr. Kahn removed him from work "because of the pain and condition [he] was in." See Aff. of Richard Picinich, Oct. 27, 2003 at ¶ 9, Dkt. No. 44; Pl.'s Ex. E, Dep. of Richard Picinich, Mar. 17, 2003 ("Picinich Dep. II") at 70:4-23, Dkt. No. 45. According to Picinich, when he arrived at work on the evening of April 11, 2000, he discovered that the part time Preload Supervisor, Scott Briggs, was in a knee brace because, according to Mr. Briggs, he underwent knee surgery. See Picinich Aff. at ¶ 9, Dkt. No. 44. Further, Picinich contends that during the three days of his return to work, Mr. Briggs was unable to assist Picinich with any physical activities and requested that Picinich train new employees, since, Mr. Briggs claimed, he was unable to do so due to his knee. Id. at ¶ 10. Also during this time, Picinich contends he "was forced to restrain a package sliding towards [him] to protect [himself] while on the operations floor, to twist and bend due to inadequate room, to maneuver on the operations floor, to be on [his] feet most of the day, and to train new employees." Id. at ¶ 11.*fn5 On April 14, 2000, Dr. Kahn removed Picinich from work "effective immediately," stating that he was to be considered "temporarily totally disabled until further notice." See Harper Aff. at Ex. 9, Dkt. No. 40.

  Picinich contends that in May 2000, he asked Robin Fey about returning to work, and in June 2000, he inquired with her about relocating to another district. See Pl.'s Ex. J, Dep. of Robin Fey, Feb. 26, 2003 at 138:17-139:5, 148:7-149:5, Dkt. No. 45. However, on June 15, 2000, Dr. Kahn diagnosed Picinich with "multilevel lumbar degenerative disc disease with bilateral L5 and left S1 radiculopathies" and concluded that, regarding work issues, he "would like to have [Picinich] perform an aggressive stabilization program for the next four weeks before considering any release to return to work at this time." Moreover, Dr. Kahn stated that "the violation of the guidelines for return to work parameters which occurred in April cannot occur again, and unless I receive some written assurance that such will not occur and a detailed job description which will be adhered to is provided, no return to work release will be provided, and [Picinich] will be considered permanently disabled." See Pl.'s Ex. 18, Dkt. No. 45.

  Thereafter, on July 13, 2000, Picinich underwent a functional capacity exam ("FCE") at the request of CIGNA.*fn6 After the exam, Picinich was examined by Dr. Kahn, who later reported that Picinich suffered re-injury from the FCE and he could not predict the degree to which Picinich would recover or the time it would take. See Pl.'s Ex. 19, Dkt. No. 45; Harper Aff. at Ex. 10, Dkt. No. 40. On July 20, 2000, Dr. Kahn issued another report in which he stated that Picinich was to be considered "temporarily totally disabled from any type of work activities" at that time. See Harper Aff. at Ex. 11, Dkt. No. 40 (emphasis added).

  The following month, August 2000, Picinich told Robin Fey that he wanted to be a productive employee at UPS. However, on August 15, 2000, Dr. Kahn issued a report which stated that Picinich was "temporarily totally disabled from employment." In a meeting between Picinich and defendants Grover and Canavan on September 25, 2000, Picinich indicated that he wished to return to work, requested a staff position, mentioned he was having back problems, and requested a reasonable accommodation. However, Dr. Kahn notified UPS, on November 3 and 28, 2000, that he continued to deem Picinich "temporarily totally disabled".

  On January 5, 2001, Dr. Kahn released Picinich for work, with the following restrictions:
[1] No sitting, standing, driving or walking more than 25 minutes at a time.
[2] No bending, lifting, carrying, climbing, stooping, kneeling, twisting, or squatting on a permanent basis.
[3] He must be placed in a work environment where he has an adequate space and safe area to be able to perform prone extensions on an hourly basis or more frequent as needed.
[4] He must be afforded the opportunity to change positions every 25 minutes as described above.
  Additionally, Dr. Kahn reported that Picinich needed to work, on a permanent basis, in a "sedentary position, with no physical handling activities of any type." Pl.'s Ex. 25, Dkt. No. 45. On January 12, 2001, in response to a request by Dave Matt, District Workforce Planning Manager at UPS,*fn7 Dr. Kahn reported that, as of that date, Picinich was unable to perform all of the physical and mental functions of the Preload Manager position as reported by UPS. See Harper Aff. at Ex. 15, Dkt. No. 40. Dr. Kahn also reported that, regarding the Preload Manager position, Picinich was unable to perform the following functions: load or unload packages of up to 70 pounds, bend, stoop, crouch, crawl, climb, turn-pivot, lift and lower packages up to 70 pounds, assist in moving packages up to 150 pounds, or lift above shoulder or below waist to foot level. See id. Further, Dr. Kahn reported that Picinich could travel by car on a limited basis, to wit, 25 minutes at a time. See id. See also Pl.'s Ex. K, Kahn Dep. at 90:8-25, 113:9-16, Dkt. No. 45. On February 1, 2001, in response to another request from Dave Matt, Dr. Kahn reworded his aforementioned restrictions as capabilities as follows:
 
It is my opinion within a reasonable degree of medical certainty that [Picinich] can work in a full time sedentary position within the following parameters:
[1] He may alternate between sitting, standing and walking, with none of those activities performed more than 25 minutes at a time, prior to change in position, and may drive up to 25 minutes from his home to work place. [2] He may utilize standard office equipment at his desk such as a calculator, computer or telephone.
[3] He must be allowed to work in an environment where there is a safe area to allow him to perform exercises previously described at least on an hourly basis for a few minutes, or more frequently if necessary.
Harper Aff. at Ex. 18, Dkt. No. 40. Dr. Kahn concluded by stating that Picinich "may not perform any bending, lifting, carrying, climbing, stooping, kneeling, twisting or squatting at any time . . . [and] may not perform any physical handling type activities, drive a vehicle other than his own vehicle to and from work, or climb any more than a few stairs to access his work space, with full restriction on repetitious stair climbing as an integral part of work activities." Id.

  On January 19, 2001, Picinich asked Robin Fey if he could transfer to another district, to which she replied that she "did not know but [] would ask." See Pl.'s Ex. J, Fey Dep. at 198:5-17, Dkt. No. 45. On February 1, 2001, UPS employee Tom Wolfe was promoted from Security Supervisor to replace Bev Mehalik as Security Manager in Pennsylvania. Defendants contend they were unaware of the date Mr. Wolfe was recommended for the promotion.

  On March 20, 2001, Dave Matt issued a letter to Picinich which stated that "[o]ver the last several weeks, UPS has carefully evaluated your request for a job-related accommodation . . . [and] . . . based upon the medical information that we have received, we have made a preliminary determination that you may be eligible for a reasonable accommodation pursuant to the [ADA]." Pl.'s Ex. 33, Dkt. No. 45. Matt concluded the letter by informing Picinich that a meeting was scheduled for April 4, 2001 so that UPS could continue its assessment of Picinich's request, and that Picinich should be prepared to discuss in detail the specific accommodation he was requesting. See id. At the April 4, 2001 meeting, Picinich, Robin Fey and Dave Matt discussed potential accommodations regarding the Preload Manager position. UPS, citing a memorandum issued to defendant Wilson from Dave Matt and Robin Fey regarding the commentary at the meeting, argues that, at the meeting, Picinich said there were no accommodations which would allow him to perform the Preload Manager position. See Harper Aff. at Ex. 20, Dkt. No. 40. Picinich testified, however, that at the meeting he indicated he was capable of performing this position. See Pl.'s Ex. E, Picinich Dep. II at 106:5-9, Dkt. No. 45.

  According to defendant Wilson, a UPS region committee deemed Picinich to be a qualified individual with a disability pursuant to the UPS ADA procedure. See Pl.'s Ex. F, Dep. of Jeffrey Wilson, Mar. 19, 2003 at 14:2-15:13, 140:11-146:16, Dkt. No. 45. Defendants dispute the accuracy of Wilson's testimony by citing to the written UPS ADA procedure as evidence that the region committee was only authorized "to determine whether [Picinich] has a condition that may be a disability under the ADA." See Harper Aff., Ex. 16 at 319, Dkt. No. 40. According to defendants, UPS only determined that Picinich was "disabled" under its ADA policy, not, as Wilson testified, that Picinich was a qualified individual with a disability. See Defs.' Statement of Material Facts at ¶ 55, Dkt. No. 38. Further, defendants contend that UPS worked to identify a reasonable accommodation which would allow Picinich to return to work, citing as evidence a copy of its "Accommodation Checklist" completed by Picinich, Dave Matt and Robin Fey on April 4, 2001. See id., citing Harper Aff. at Ex. 19, Dkt. No. 40. Picinich disputes the accuracy of this allegation, citing the testimony of Robin Fey and defendant Grover that UPS did not begin its ADA procedure when he was released for work in April 2000, see Pl.'s Ex. J, Fey Dep. at 77:11-25, 198:5-23, Dkt. No. 45; Pl.'s Ex. H, Grover Dep. at 154:19-156:7, Dkt. No. 45, and the testimony of Robin Fey that she did not recall whether she inquired about available positions outside the District on behalf of Picinich as he requested in January 2001, and that no essential job functions other than those for the Preload Manager position were discussed at the April 4, 2001 meeting, see Pl.'s Ex. J, Fey Dep. at 223:8-16, 228:18-23, Dkt. No. 45.

  On April 13, 2001, Dave Matt issued a letter to Picinich wherein he stated that "after carefully reviewing your situation, we are aware of no available position at UPS at this time for which your [sic] are qualified and capable of performing the essential job functions with or without reasonable accommodation. If your condition or abilities change in the future, however, or if you become aware of an open position that you believe you are capable of performing, please contact me so that we may re-evaluate your situation." See Harper Aff. at Ex. 21, Dkt. No. 40. Picinich testified that he did not recall whether, at the time he received this letter, he was aware of any available manager positions in the Upstate N.Y. District that he was qualified to perform. See id., Picinich Dep. II at 107:3-12, Dkt. No. 40. Picinich simply states that he can perform the essential job functions of several jobs at UPS. See Pl.'s Response to Defs.' Statement of Material Facts at ¶¶ 83-88, Dkt. No. 47.

  Picinich contested the decision of UPS' ADA committee through its EDR process, and a meeting was held on May 14, 2001 between Picinich, Wilson and Robin Fey to discuss same. Both of Picinich's EDR claims, regarding his reassignment to Preload Manager, see supra, at 3, as well as the ADA committee decision, were scheduled to be heard together on June 11, 2001 at mediation sponsored by UPS. Picinich cancelled the mediation prior to its commencement, ostensibly because he was given only five days notice that his ADA claim would be mediated along with his dispute regarding his reassignment to Preload Manager. See Picinich Aff. at ¶ 20, Dkt. No. 44.*fn8

  On June 4, 2001, Wilson notified Picinich that a position entitled "Dispatch Specialist/Yard Controller" opened up in Syracuse. By letter dated June 6, 2001, Wilson provided Picinich with a Job Breakdown Analysis (JBA) and other information regarding this position. On June 23, 2001, Picinich sent a letter to Wilson wherein he requested additional information about the physical requirements of the position. Attached to Picinich's letter was a copy of a letter from Dr. Kahn to Picinich, dated June 15, 2001, wherein Dr. Kahn stated he was unable to determine whether the position was "medically appropriate and safe" for Picinich to accept without more detailed information regarding the physical demands of the job, including, among other things, the availability and timing of breaks, equipment used, and frequency with which changes in body position can be accommodated.*fn9 See Pl.'s Ex. 44, Dkt. No. 45. Defendants contend that on July 11, 2001, Wilson sent Picinich written notification of the physical requirements of the Dispatch Specialist/Yard Controller position as well as pictures of the workspace, giving him until July 19, 2001 to consider same, but Picinich never accepted the job offer. See Harper Aff. at Ex. 25, Dkt. No. 40; Harper Aff. at Ex. 30, Picinich Dep. II at 123:15-25, Dkt. No. 40. Picinich testified that he never accepted nor rejected the job offer because he never received the July 11, 2001 letter from Wilson. See Pl.'s Ex. E, Picinich Dep. II at 123:15-19, 126:8-15, Dkt., No. 45.*fn10 Defendants argue that Picinich never followed up with Wilson about Picinich's request for additional information on the Dispatch Specialist/Yard Controller position, even though he alleges never receiving it. See Harper Aff. at Ex. 30, Picinich Dep. II at 123:15-25, Dkt. No. 40. However, Picinich contends that he made three phone calls in an attempt to speak to Wilson after he sent the June 23, 2001 letter. See Pl.'s Ex. B, Pl.'s Response to Defs.' First Set of Interrogs. at 15, Dkt. No. 45; Picinich Aff. at ¶ 26, Dkt. No. 44.

  In any event, on June 26, 2001, Dr. Kahn reported that "[Picinich's] physical condition at this point in time has decompensated to the point where I do not feel that he can presently work even within the context of his previously indicated written release for return to work with restriction and accommodation. Therefore, I am going to consider him temporarily totally disabled from work at this point until we can resolve this acute episode." Harper Aff. at Ex. 27, Dkt. No. 40. Moreover, Dr. Kahn later testified that from May 25, 2001 until August 28, 2001, Picinich was totally disabled from working in any position, including the Dispatch Specialist/Yard Controller position as described in Wilson's letter of July 11, 2001. See Harper Aff. at Ex. 34, Kahn Dep. at 95:16-97:12, Dkt. No. 40 (emphasis added).

  According to defendants, Picinich's short-term disability benefit terminated, and his long-term disability benefit commenced, on May 9, 2001. See Defs.' Statement of Material Facts at ¶ 62, Dkt. No. 38, citing Harper Aff. at Ex. 31, Wilson Dep. at 275:1-277:9, Dkt. No. 40. Under long-term disability, Picinich's benefit was reduced to 60% of his salary from the full salary benefit he received under short-term disability. See id. Picinich contends that he received his last short-term disability payment in March 2001 and that his long-term disability commenced in April 2001. See Picinich Aff. at ¶ 15, Dkt. No. 44. In support of his argument, Picinich submitted a copy of a "Separation Form" signed by Robin Fey on May 9, 2001, which states that Picinich was terminated on February 1, 2001, and that his long-term disability commenced on that date. See Pl.'s Ex. 42, Dkt. No. 45. Defendant Wilson testified that although the "summary plan" at UPS calls for short-term disability benefits to terminate after 12 months, Picinich received an extra two months of short-term benefits because, as of February 2001, UPS was "still in the process of trying to continue with the interactive process and the evaluation of potential accommodations and positions" and it was not until May 9, 2001 that "it was determined that, to be in compliance with the necessary record keeping on the administrative process whereby short-term disability ends and long-term disability begins according to the summary plan description, that [UPS] needed to go ahead and take this particular step." Harper Aff. at Ex. 31, Wilson Dep. at 275:1-20, Dkt. No. 40. Picinich's long-term disability benefit terminated on January 30, 2003. In a letter to Picinich informing him of such, the insurance carrier noted that, based on a vocational assessment of his case, they determined that he was capable of performing the jobs of Security Manager and Manager. See Pl.'s Ex. 47, Dkt. No. 45.

  In March 2002, an Administrative Law Judge ("ALJ") for the Social Security Administration ("SSA") found that Picinich was entitled to Social Security Disability benefits, based on an application he filed in November 2000. The ALJ found that Picinich "has been under a disability, as defined by the Social Security Act, since January 21, 2000." See Harper Aff. at Ex. 28, Dkt. No. 40 (emphasis added). The ALJ also concluded that Picinich

 
is unable to do sustained work-related physical activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. That ability is essential for employment and when a claimant lacks that ability the provisions of Social Security Ruling 96-8p justify a conclusion of disability. [Picinich's] occupational base is so markedly eroded that vocational adjustment to any work existing in significant numbers in the national economy may not reasonably be expected.
Id. (emphasis added). The UPS Flexible Benefits Plan stated that long-term disability benefits could be terminated for failure "to apply, reapply, and appeal any denials of Social Security Disability insurance benefit[s] . . . to which you may be entitled, until all such applications and appeals are exhausted." See Pl.'s Ex. 22 at UPS00554, Dkt. No. 45.

  Picinich filed a dual charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights in May 2001, alleging UPS failed to accommodate his disability. In September 2001 the EEOC issued Picinich a "right-to-sue" letter.

  On December 7, 2001, Picinich commenced the present suit. In its current form, the complaint*fn11 sets forth three causes of action. As Count I, Picinich alleges that defendant UPS*fn12 failed to provide him with a reasonable accommodation in violation of the ADA and NYHRL. See Compl. ¶ 38. Picinich alleges in Count II of the Complaint that defendant UPS terminated his employment due to his disability in violation of the ADA and NYHRL. See id., ¶ 39. Finally, in Count III of the Complaint, Picinich alleges that the individual defendants, Grover, Canavan and Wilson, aided and abetted defendant UPS in committing violations of the NYHRL. See id., ¶ 40.

  Picinich seeks an order causing UPS to rehire him "at a sedentary supervisory or management position comparable to [his] prior supervisory and management positions for which [he] is qualified to perform with a reasonable accommodation" or in the alternative, damages in the amount of $3,107,034.80 against defendants jointly and severally for past and future lost wages and benefits as well as pension benefits. Picinich also seeks $300,000 in compensatory damages against defendants jointly and severally, or, in the alternative, against defendant UPS. Finally, Picinich seeks an award of litigation costs and expenses.

  Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56, seeking dismissal of the entire complaint. Picinich opposes and cross moves for partial summary judgment pursuant to Fed.R.Civ.P. 56, seeking an order that the first two elements of his reasonable accommodation claim, to wit, that he was disabled within the meaning of the ADA and NYHRL and that defendants had notice of same, have been established as a matter of law. For purposes of their motion for summary judgment, defendants do not oppose a finding of disability and notice under Picinich's reasonable accommodation claim, as they argue that he cannot establish the final two elements of said claim, to wit, that he could perform the essential functions of his job with a reasonable accommodation, and that UPS failed to make such accommodations. However, in the event the court denies their motion for summary judgment, defendants oppose Picinich's cross motion.

  III. DISCUSSION

  A. Summary Judgment Standard

  A motion for summary judgment shall be granted "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, 106 S.Ct. 2548, 2552 (1986); Peck v. Public Serv. Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir. 2003), cert. denied, 124 S.Ct. 540 (2003). When deciding whether to grant a motion for summary judgment, "a court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." See Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir. 2003), citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). While the initial burden of demonstrating the absence of a genuine issue of material fact falls upon the moving party, once that burden is met, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial," see Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002), citing Fed.R.Civ.P. 56(c), by a showing sufficient to establish the existence of every element essential to the party's case, and on which that party will bear the burden of proof at trial. See Peck, 326 F.3d at 337.

  B. Count I: Failure to Provide a Reasonable Accommodation

  Picinich alleges that defendant UPS failed to provide him a reasonable accommodation in violation of the ADA and NYHRL.

  According to the ADA,
[n]o covered entity*fn13 shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to [among other things] the advancement or discharge of employees, employee compensation, . . . and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). The term "discriminate" is defined by the ADA as, among other things,
 
[n]ot making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer].
42 U.S.C. § 12112(b)(5)(A). Pursuant to NYHRL,
 
[i]t shall be an unlawful discriminatory practice for an employer . . ., to refuse to provide reasonable accommodations to the known disabilities of an employee . . . in connection with a job or occupation sought or held.
N.Y. Exec. L. § 296.3(a) (McKinney 2003). NYHRL also specifies that an employer is not required to provide "accommodations which can be demonstrated to impose an undue hardship on the operation of [the] employer's . . . business, program or enterprise." N.Y. Exec. L. § 296.3(b).

  In order to establish a prima facie case of failure to provide a reasonable accommodation pursuant to the ADA and NYHRL,*fn14 Picinich must establish that (1) he is an individual with a disability as defined by the ADA, (2) UPS had notice of his disability, (3) he could perform the essential functions of his job with reasonable accommodation, and (4) UPS failed to make such accommodations. See Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir. 2001); Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999); Romanello v. Shiseido Cosmetics Am. Ltd., 00-Civ.-7201, 2002 WL 31190169, at *7 (S.D.N.Y. Sept. 30, 2002), aff'd, No. 02-9212, 2003 WL 21728998 (2d Cir. July 23, 2003). However, UPS can defeat Picinich's claim of failure to accommodate if it can establish "(1) that making a reasonable accommodation would cause it hardship, and (2) that the hardship would be undue." See Mitchell, 109 F.3d at 6. See also Romanello, 2002 WL 31190169 at *7. For purposes of its summary judgment motion only, UPS concedes that Picinich was disabled within the meaning of the ADA and NYHRL at all relevant times and that UPS had ...


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