United States District Court, N.D. New York
June 15, 2004.
Richard M. Picinich, Plaintiff,
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
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.
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.
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:
 No sitting, standing, driving or walking more
than 25 minutes at a time.
 No bending, lifting, carrying, climbing,
stooping, kneeling, twisting, or squatting on a
 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.
 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
It is my opinion within a reasonable degree of
medical certainty that [Picinich] can work in a full
time sedentary position within the following
 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.  He may utilize standard office equipment at his
desk such as a calculator, computer or telephone.
 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
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
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.
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.
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.
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
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
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
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
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 notice thereof.
However, UPS argues that should its motion be denied, Picinich
should not be granted summary judgment on his cross motion
regarding these elements of his failure to accommodate claim.
Therefore, the court will discuss all four elements of Picinich's
failure to accommodate claim.
1. Individual With a Disability
Pursuant to the ADA, disability is defined as, among other
things, "a physical or mental impairment that substantially
limits one or more of the major life activities of [an]
individual." See 42 U.S.C. § 12102(2)(A).*fn15 "[W]hether
a person has a disability under the ADA is an individualized
inquiry." Sutton v. United Air Lines, Inc., 527 U.S. 471, 483,
119 S.Ct. 2139, 2147 (1999), citing Bragdon v. Abbott,
524 U.S. 624, 641-642, 118 S.Ct. 2196 (1998). In order to establish that
Picinich is disabled under the ADA, he must show that (1) he has
a mental or physical impairment, (2) which limits a major life
activity (3) in a substantial manner. See Colwell v. Suffolk
County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998), citing
Bragdon, 524 U.S. 624. Also, it is important to note that the
court's focus must be on whether Picinich was disabled "at the
time the adverse action occurred." Monroe v. Cortland County,
New York, 37 F. Supp.2d 546, 553 (N.D.N.Y. 1999), citing
Heilweil v. Mount Sinai Hosp., 32 F.3d 718 (2d Cir. 1994).
NYHRL, defines disability as, among other things, "a physical .
. . impairment resulting from . . . physiological . . . or
neurological conditions which prevent the exercise of a normal
bodily function or is demonstrable by medically accepted clinical
or laboratory diagnostic techniques."*fn16 See N.Y. Exec.
L. § 292(21)(a) (McKinney 2003). The NYHRL definition of
disability is broader than that of the ADA because it does not
require identification of a major life activity that is
substantially limited by an individual's impairment. See
Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144,
154-155 (2d Cir. 1998). Thus, if the court finds that Picinich is
disabled under the ADA, he is likewise disabled under NYHRL.
Initially, the court must determine whether Picinich had a
physical or mental impairment during the time frame at issue.
Plaintiff argues the applicable time frame is from January 2000
through July 2001. However, for the purposes of this action, the
relevant time frame includes the period Picinich claims he was
able to work with or without reasonable accommodation and the
date of his termination from employment. The record reveals that
from January 20, 2000 until July 20, 2000, Dr. Kahn reported that
Picinich was temporarily totally disabled from working in the
Preload Manager position, except for the approximate four day
period in April 2000 when Dr. Kahn released Picinich for work
within restrictions. On July 20, 2000, Dr. Kahn reported that
Picinich was temporarily totally disabled from any type of work
activities, and this restriction remained in place until Dr. Kahn
released Picinich to work in a sedentary job on January 5, 2001.
Deposition testimony of Dr. Kahn revealed that he determined
Picinich to be unable to perform any type of work from May 25, 2001 until August 28,
2001. Nonetheless, the record shows that Picinich's employment
with UPS terminated effective May 9, 2001 at the latest. See
supra, at 15. Thus, the relevant time frame for this court's
purpose of determining whether Picinich was disabled is January
20, 2000 through May 9, 2001.
According to EEOC regulations interpreting the ADA,*fn17 a
"physical or mental impairment" is, among other things, any
physiological disorder or condition affecting the neurological or
musculoskeletal systems of the body. See
29 C.F.R. § 1630.2(h)(1). It is indisputable, based on the evidence submitted
to the court, that Picinich had a condition which affected his
musculoskeletal system during the relevant period. See
Colwell, 158 F.3d at 639-640, 641-642; Crispi v. Green Bus
Line, Inc., No. 00-CV-7159, 2003 WL 1903264, at *5 (E.D.N.Y.
Jan. 7, 2003).
Next, the court must determine whether Picinich's impairment
limited a major life activity. EEOC regulations define "major
life activity" as a function "such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." See § 1630.2(i). Although
this list is not meant to be exhaustive, see Bragdon, 524
U.S. at 639, 118 S.Ct. at 2205, the term, "major life activity"
has been interpreted to mean an activity that is "of central
importance to daily life," Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 691 (2002).
The EEOC has identified other activities to be included in this category, such as, but
not limited to, "sitting, standing, lifting, or reaching." See
Colwell, 158 F.3d at 642, quoting Ryan v. Grae & Rybicki,
P.C., 135 F.3d 867, 870 (2d Cir. 1998). Here, Dr. Kahn has
indicated that from January 2000 until at least May 2001,
Picinich was limited in the following areas: walking, standing,
lifting, sitting, reaching and working. Picinich has established
that his back injury affects an activity which is named by EEOC
regulations as well as the Court of Appeals for the Second
Circuit as a "major life activity," and therefore he has
satisfied this requirement of the court's analysis. See
Colwell, 158 F.3d at 642; Reeves, 140 F.3d at 150; Ryan,
135 F.3d at 870; EEOC v. Yellow Freight System, Inc., No.
98-CIV-2270, 2002 WL 31011859, at *13 (S.D.N.Y. Sept. 9,
Finally, the court must determine whether a major life activity
of Picinich's is limited in a substantial manner. According to
EEOC regulation, "substantially limits" means
[u]nable to perform a major life activity that the
average person in the general population can perform;
or significantly restricted as to the condition,
manner or duration under which an individual can
perform a particular major life activity as compared
to the condition, manner or duration under which the
average person in the general population can perform
that same major life activity.
See § 1630.2(j)(1)(i)(ii). Factors to be considered in
determining whether an individual is substantially limited in a
major life activity are "the duration or expected duration of the impairment" and "the permanent or long
term impact, or the expected permanent or long term impact of or
resulting from the impairment. See § 1630.2(j)(2)(i)(ii).
According to Dr. Kahn, at all relevant times Picinich was
unable to stand, sit, or walk for, at most, 30 minutes at a time.
Clearly these limitations exceed those that the average adult in
the general population is subject to. See, e.g., Yellow
Freight System, 2002 WL 31011859, at *13 (citations omitted)
("[C]ourts have generally found that the inability to sit for
periods of an hour or less may constitute a substantial
limitation on the ability to sit, while the ability to sit for
longer periods does not.") It is also significant that, according
to Dr. Kahn, Picinich's limitations were expected to be
permanent. Moreover, the results of the IME, conducted in March
2000 on behalf of defendant UPS' insurance carrier, indicated
that Picinich could work in a setting where "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." See Harper Aff. at
Ex. 10, Dkt. No. 49. These limitations clearly are not
representative of those of an average person. Therefore, Picinich
has established as a matter of law that at all relevant times he
was a disabled individual with a disability within the meaning of
UPS cannot be held liable under the ADA unless, at the time of
the relevant employment decisions, it had information that would
have permitted a reasonable employer to conclude that Picinich
was disabled. See Young v. Westchester County Dep't of Soc.
Servs., No. 02-7706, 2003 WL 245323 (2d Cir. Feb. 3, 2003) (unpublished opinion), cert. denied, 123 S.Ct. 2652
(2003), citing Bartlett v. N.Y. State Bd. of Law Examiners,
226 F.3d 69, 85-86 (2d Cir. 2000) (internal citation omitted);
Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932-33 (7th Cir.
In support of his argument that UPS was aware of his disability
beginning in at least January 2000, Picinich submitted evidence
which shows that defendants Grover, Wilson and Canavan, as well
as Robin Fey all had knowledge of his condition at various times
throughout the relevant time period. In opposition, UPS points to
the IME results as evidence that there is a question of fact as
to what defendants knew regarding the extent of Picinich's
condition. However, while the IME results indicated that Picinich
could work, it also defined the limitations within which he could
work, and it clearly stated that he had an impairment. UPS also
argues that Dr. Kahn's reports indicated that Picinich's
condition may improve with treatment. However, those reports also
indicated that Picinich's work limitations would likely be
Therefore, because Picinich has established that defendant UPS
had information which would have permitted a reasonable employer
to conclude he was disabled at all relevant times, and because
defendant UPS has not presented evidence to the contrary, the
second element of Picinich's failure to accommodate claim is
established as a matter of law.
Accordingly, Picinich's cross motion for summary judgment is
granted as the court has determined that he has established the
first two elements of his failure to accommodate claim as a
matter of law.
3. Qualified Individual With a Disability
The ADA defines a "qualified individual with a disability" as
"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). In
the present case, discussion of the terms "essential function,"
"reasonable accommodation" and "undue hardship" is necessary to
determine whether Picinich meets the definition of a "qualified
individual with a disability."
Essential functions are defined by regulation as those duties
which are fundamental to the position in question, and not merely
marginal. See Jackan v. New York State Dep't of Labor, No.
97-CV-0483, 1998 WL 760266 at *7 (N.D.N.Y. Oct. 26, 1998),
aff'd, 205 F.3d 562 (2d Cir. 2000), quoting Stone v. City of
Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997);
29 C.F.R. § 1630.2(n)(1). A job function may be considered essential for
several reasons, including, for example, because the reason for
the existence of the position is to perform that function,
because of the limited number of employees available among whom
that function can be distributed, or because of the highly
specialized nature of the function. See § 1630.2(n)(2).
According to the ADA, "consideration shall be given to the
employer's judgment as to what functions of a job are essential,
and if an employer has prepared a written description before
advertising or interviewing applicants for the job, the
description shall be considered evidence of the essential
functions of the job." 42 U.S.C. § 12111(8). In addition, the
applicable regulation provides that:
[e]vidence of whether a particular function is
essential includes, but is not limited to . . . [t]he
amount of time spent on the job performing the
function; [t]he consequences of not requiring the
incumbent to perform the function; [t]he terms of a
collective bargaining agreement; [t]he work
experience of past incumbents in the job; and/or
[t]he current work experience of incumbents in
29 C.F.R. § 1630.2(n)(3).
The ADA defines "reasonable accommodation" as, among other
things, "job restructuring, . . . reassignment to a vacant
position, acquisition or modification of equipment or devices, . . .
and other similar accommodations for individuals with
disabilities." 42 U.S.C. § 12111(9)(B). According to the
applicable regulation, "reasonable accommodation" means, among
[m]odifications 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; or . . . [m]odifications or adjustments
that enable a covered entity's employee with a
disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly
situated employees without disabilities.
29 C.F.R. § 1630.2(o)(1).
The ADA defines "undue hardship" as "an action requiring
significant difficulty or expense," when considered in light of
(1) the nature and cost of the accommodation, (2) the overall
financial resources of the facility, the number of employees, the
effect on expenses and resources, or the impact on operations,
(3) the overall financial resources of the employer, the overall
size of its business with respect to the number of employees, the
number, type and location of its facilities, and (4) the type of
operations of the employer, including the composition, structure,
and functions of the workforce, geographic separateness,
administrative or fiscal relationship of the facilities in
relation to the employer. See 42 U.S.C. § 12111(10).*fn19
These factors are expounded upon by regulation to provide for
"taking into consideration the availability of tax credits and
deductions, and/or outside funding" when evaluating the nature and net cost of the
accommodation. 29 C.F.R. § 1630.2(p)(2)(i). The regulations
prescribe as an additional consideration "[t]he impact of the
accommodation upon the operation of the facility, including the
impact on the ability of other employees to perform their duties
and the impact on the facility's ability to conduct business." §
In order to make out a prima facie case of failure to
accommodate, Picinich must establish that he can satisfy the
requirements of the Preload Manager position (or other position
that he desires) without assistance, or that an accommodation
exists that permits him to perform the job's essential functions.
See Jackan, 1998 WL 760266 at *9. As to the existence of an
accommodation, Picinich bears both the burdens of production and
persuasion. See Jackan, 205 F.3d at 567, citing Borkowski
v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995).
In order to identify an accommodation, Picinich must make at
least a facial showing that an accommodation is possible. See
Jackan, 205 F.3d at 568, citing Mengine v. Runyon,
114 F.3d 415, 420 (3d Cir. 1997). However, as to the reasonableness of
said accommodation, in other words, whether said accommodation
would cause undue hardship to UPS, Picinich bears only the burden
of production, and such a burden is "not a heavy one." Jackan,
205 F.3d at 567, citing Borkowski, 63 F.3d at 138. To meet
this burden, Picinich "need only show that an `accommodation'
seems reasonable on its face," US Airways, Inc. v. Barnett,
535 U.S. 391, 401, 122 S.Ct. 1516 (2002), and "[i]t is enough for
[Picinich] to suggest the existence of a plausible accommodation,
the costs of which, facially, do not exceed its benefits,"
Jackan, 205 F.3d at 567, citing Borkowski, 63 F.3d at 138.
The burden of persuasion that the particular circumstances of
this case demonstrate undue hardship necessarily rests with UPS.
See Barnett, 535 U.S. at 402, 122 S.Ct. at 1523; Borkowski, 63 F.3d at 138.
In support of its motion for summary judgment as to Picinich's
claim for failure to accommodate, UPS argues that Picinich cannot
establish that he is a qualified individual with a disability
because (1) he was unable to perform the essential functions of
the Preload Manager position at all relevant times, (2) he was
unable to identify any accommodations which would allow him to
perform the Preload Manager position, (3) he could not identify
any vacant positions in the Upstate N.Y. District that he could
perform in light of his restrictions, and (4) a Social Security
Administration ALJ found that Picinich was too disabled to work
within the meaning of the Social Security Act between January
2000 and March 2002. Moreover, UPS argues, Picinich's requested
accommodation, that UPS transfer him to a vacant position outside
the Upstate N.Y. District, was an undue burden because (1)
searching for such a position would be extensive and would
require numerous work hours on the part of the Human Resources
Manager, and (2) relocation costs would range from $30,000 to
a. Preload Manager Position
Questions of fact exist regarding whether Picinich was able to
perform the essential functions of the Preload Manager position
at all relevant times. First, there is conflicting evidence as to
the essential job functions of that position. By facsimile dated
April 10, 2000, at the request of Robin Fey, a representative
from CIGNA issued Dr. Kahn a description of the Preload Manager
position, including its essential functions. See Pl.'s Ex. 16,
Dkt. No. 45. Absent from this description is any mention of
bending, lifting, standing, walking, kneeling, stooping,
climbing, twisting, or driving, which were the activities Dr.
Kahn listed in his modifications and/or restrictions, upon which
Picinich's release for work was based. However, the essential functions of the Preload Manager position as set
forth in the UPS Essential Job Functions Index for 2001 includes,
among other things, the following requirements: travel by car or
plane, demonstration of loading and unloading packages, bending,
stooping, standing, walking, and lifting. See Pl.'s Exs. 35-37,
Dkt. No. 45. Picinich argues that UPS erroneously defines the
essential functions of many of its jobs, including the Preload
Manager position, as physical activities such as "bend/stoop" and
"crouch/kneel" instead of responsibilities such as "directing
administrative work" or "resolving customer issues." There is
also conflicting evidence regarding whether Picinich told Robin
Fey and Dave Matt during their February 4, 2001 meeting that he
could perform the essential functions of the Preload Manager
position, ostensibly because the parties disagree as to what
those functions are. Which functions are essential, and whether
Picinich could perform them, are material questions of fact for a
fact finder to decide.
b. Reassignment to a Vacant Position
While Picinich does not identify an accommodation which would
allow him to perform the essential functions of the Preload
Manager position, he argues that transfer to a vacant management
level position is a reasonable accommodation. In order to
establish that UPS failed to accommodate him by transfer to
another position, Picinich must establish that a vacancy existed
for a position of which he could perform the essential functions.
See Jackan, 205 F.3d at 568, citing Mengine, 114 F.3d at
420. Once Picinich meets this burden, summary judgment will not
be appropriate unless UPS makes a showing that it provided some
other accommodation, or alternatively, that a transfer would
cause it undue hardship. See Norville v. Staten Island Univ.
Hosp., 196 F.3d 89, 99 (2d Cir. 1999); Borkowski, 63 F.3d at
142. It is also important to note that although a reasonable accommodation may include reassignment of Picinich to a vacant
position for which he is qualified, the ADA does not require UPS
to create a new position for Picinich or move another employee
from a previously held position in order to accommodate him.
See Norville, 196 F.3d at 99; Romanello, 2002 WL 31190169,
at * 8; Needle v. Alling & Cory, Inc., 88 F. Supp.2d 100, 107
UPS argues that while it searched for vacant positions within
its Upstate N.Y. District, it was unable to locate any that
Picinich could perform within his physician imposed restrictions.
The record shows that in January 2001, Picinich asked Robin Fey
if he could transfer to a position outside the District, to which
she responded that she "did not know but  would ask." A
Security Manager position was filled in Pennsylvania on February
1, 2001 by Tom Wolfe. See Pl.'s Exs. 30, 31, Dkt. No. 45.
Although UPS contends it is unaware of the date Mr. Wolfe was
recommended for this position, that alone does not overcome the
fact that Picinich has met his burden of identifying a vacant
Next, UPS argues that it was not required to transfer him to a
position outside the District because it does not have a policy
of transferring employees for purposes of reasonable
accommodation.*fn20 Here, UPS misses the point. Because the
intent of the ADA is not to give disabled employees preferential
treatment, reassignment of a disabled employee to another
facility is a reasonable accommodation only where it is the
regular practice or policy of the employer to transfer employees
between facilities or where the employer is contractually
obligated to do so. See Lovejoy-Wilson, 263 F.3d at 218;
Bates v. Long Island Railroad Co., 997 F.2d 1028, 1035-1036 (2d
Cir. 1993). See also Emrick v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 398 (E.D. Tex. 1995).
Therefore, the question is not whether UPS has a policy of
transferring disabled employees for purposes of reasonable
accommodation, the question is whether it has a policy of
transferring employees in general. Picinich has submitted
deposition testimony of the three individual defendants, all
managers at UPS, regarding their employment history with the
company, including several transfers each between facilities in
different districts. See Pl.'s Ex. I, Dep. of Brendan Canavan,
Feb. 26, 2003, 8:2-16, 9:7-10:21, 18:3-19:16, Dkt. No. 45; Pl.'s
Ex. F, Dep. of Jeff Wilson, Mar. 19, 2003, 10:19-11:6,
14:18-15:6, Dkt. No. 45; Pl.'s Ex. H, Dep. of James Grover, Mar.
20, 2003, 8:3-25, 10:3-11, 11:5-21, 12:4-13:7, Dkt. No. 45.
Picinich has also submitted lists of UPS promotions and job
transfers for 2000 and 2001, including some which specify
reassignment across districts. See Pl.'s Exs. 29-31, Dkt. No.
45. Therefore, a material question of fact exists as to whether
there was a policy in existence at UPS during the relevant time
periods to reassign management level employees between districts.
Nonetheless, UPS argues that Picinich could not perform the
essential functions of the Security Manager position, and
therefore, he cannot meet his burden of identifying a vacancy for
which he was qualified. Picinich contends, however, that there is
a dispute as to the essential functions of the Security Manager
position. For example, in its response to interrogatories, UPS
stated that the essential functions of the Security Manager
position included lifting, manipulating, or otherwise moving
packages weighing up to 70 pounds, when in fact, the UPS Job
Functions Index for 2001 did not include the foregoing functions
as a requirement of said position. However, the referenced Job
Functions Index did list, among other things, the following
essential functions for the Security Management position: "bend, stoop/squat, crouch/kneel, climb stairs and walk
intermittently throughout the workday." Pl.'s Ex. 35, Dkt. No.
45. The foregoing functions are clearly outside the work
restrictions set forth by Dr. Kahn on January 5, 2001, which
included permanent restrictions from, among other things,
bending, climbing, stooping, kneeling, and squatting. Dr. Kahn
also stated on that same date that Picinich needed to work, on a
permanent basis, in a sedentary position. Therefore, to the
extent those functions are, in fact, essential, Picinich cannot
meet his burden with regard to the Security Manager position.
However, the employer's identification of a function as
essential is only one consideration for the court when
determining whether an employee is qualified for a position under
the ADA. "To avoid unfounded reliance on uninformed assumptions,
the identification of the essential functions of a job requires a
fact-specific inquiry into both the employer's description of a
job and how the job is actually performed in practice." Young v.
Central Square Sch. Dist., 213 F. Supp.2d 202, 213 (N.D.N.Y.
2002), quoting Borkowski, 63 F.3d at 140 (emphasis added).
Picinich argues that UPS misconstrues the definition of essential
function as the physical requirements of the position, and
contends that, based on his former experience for over five years
as a Security Manager with UPS, he can perform the essential
functions of the job with reasonable accommodations. See
Picinich Aff. at ¶¶ 27-30, Dkt. No. 44; Aff. of Richard M.
Picinich, Nov. 25, 2003, ¶ 5, Dkt. No. 52. A review of the
description of the Security Manager position as it is listed in
the UPS Job Functions Index reveals boilerplate language which
purports to set forth the essential functions for a broad range
of positions, including, in addition to Security Manager,
management positions in over thirty different categories such as,
for example, finance, payroll, and customer service. The
essential functions of these positions include, among other things, working in a seated
positions during a portion of the day, reporting to work timely,
and working cooperatively in a diverse environment. See Pl.'s
Ex. 35, Dkt. No. 45. Picinich's description of the Security
Manager position is much more specific. His alleged duties in
that position included "visually inspect[ing] the condition of
UPS property such as lighting, fence lines, and parking lot, and
address[ing] any security concerns." Picinich Aff. at ¶ 28, Dkt.
No. 44. As a Security Manager, according to Picinich, he "would
also attend meetings, discuss security investigations with [UPS]
employees, evaluate open and closed cases, conduct
investigations, review high value damage claims by customers, and
conduct administrative duties such as payroll and supervisor
attendance records." Id. Picinich claims that the position would
also require him to conduct package audits, which includes
inspecting packages to determine if there is any damage, but that
he could perform this function while remaining within his
physical restrictions by keeping the package at waist level and
safely rotating it while it is placed on a conveyor belt. See
id. at ¶ 29. Picinich has therefore established that there are
material questions of fact as to the essential functions of the
Security Manager position.
c. Undue Hardship
Nonetheless, UPS argues, even if Picinich meets his burden of
identifying a vacant position for which he is qualified, it can
still prevail on its motion for summary judgment because to
relocate Picinich to a position outside the Upstate N.Y. District
would impose an undue hardship.
When deciding whether an accommodation would impose an undue
hardship on an employer, it is important to keep in mind that
"undue hardship" is a relational term, and as such, consideration
is due to the benefits to others that will result as well as the costs the employer is asked to assume. See Stone,
118 F.3d at 98. Here, as the employer, UPS bears the burdens of
production and persuasion regarding their assertion of undue
hardship, and as such, it "must analyze the hardship sought to be
imposed through the lens of the factors listed in the
regulations. . . . If [UPS] can carry this burden, it will have
shown both that the hardship caused by the proposed accommodation
would be undue in light of the enumerated factors, and that the
proposed accommodation is unreasonable and need not be made."
Id., quoting Borkowski, 63 F.3d at 139. However, UPS is not
required to "analyze the costs and benefits of the proposed
accommodation with mathematical precision." Id., quoting
Borkowski, at 140.
Here, UPS argues that locating a position or positions for
Picinich outside the Upstate N.Y. District would impose an undue
hardship because such a process would be extensive and would
require numerous work hours on the part of the Human Resources
Manager and because the costs of relocating Picinich to another
district would range from $30,000 to $90,000.
UPS notes that each District functions as a business unit with
its own staff, managers, and operations,*fn21 and as such,
requiring it to conduct a nationwide search for a new position
for Picinich would be "impractical and unduly burdensome." UPS
alleges that defendant Wilson, as the Human Resources Manager,
would have to spend a considerable amount of time contacting the
Human Resources Managers in other districts to seek the intervention of Regional Managers
in order to accomplish this task, and to do so every time an
employee requested a transfer is unreasonable. As it is, UPS
argues, Wilson searched the Upstate N.Y. District for a position
for Picinich, which consists of 22 facilities and over 4000
Moreover, UPS cites a declaration by Wilson wherein he contends
that reassignment could cost UPS between $30,000 to $90,000.
See Decl. of Jeffrey Wilson, Oct. 7, 2003 at ¶ 2, Dkt. No. 39.
Picinich argues that, as an employee-at-will, UPS is not required
to pay his relocation costs. Further, Picinich has stated that in
2001, he would have been willing to incur and pay any expenses
associated with reassignment to another UPS facility, including
moving expenses. See Picinich Aff. at ¶ 37, Dkt. No. 44.
UPS has claimed a financial hardship, but has not submitted
evidence of its overall financial resources in order to allow a
meaningful consideration of same in relation to the alleged
financial burden involved in accommodating Picinich. Moreover,
Picinich's suggestion that he would have assumed the costs
associated with his relocation create an "uphill battle" for UPS
to meet its burden of establishing undue hardship. See
Lovejoy-Wilson, 263 F.3d at 221. UPS is thus left with its
remaining allegation that the mere task of locating a vacant
position for Picinich in another district imposes an undue burden
on its operations. This, without more, is not enough to outweigh
the potential benefits to Picinich in affording him the requested
accommodation. Therefore, material questions of fact remain
regarding the issue of undue hardship.
d. Judicial Estoppel and Entitlement to Social Security
Finally, UPS contends that Picinich is judicially estopped from
asserting that he meets the definition of a qualified individual
with a disability because he made contrary assertions in his application for Social Security
Disability benefits, which was approved in March 2002.
According to the doctrine of judicial estoppel, a party cannot
assert "a factual position in a legal proceeding that is contrary
to a position previously taken by [that party] in a prior legal
proceeding." Mitchell, 190 F.3d at 6, quoting Bates, 997
F.3d at 1037. A party invoking judicial estoppel, here UPS, must
establish that the other party, here Picinich, took a contrary
position in a prior proceeding, which was adopted by the tribunal
in that proceeding "in some manner, such as by rendering a
favorable judgment." Id., citing Bates, at 1038; Maharaj
v. Bankamerica Corp., 128 F.3d 94, 98 (2d Cir. 1997). Prior
inconsistent statements made to administrative agencies, "such as
to the Social Security Administration in applying for disability
benefits, may also give rise to judicial estoppel." Mitchell,
190 F.3d at 6, citing Simon v. Safelite Glass Corp.,
128 F.3d 68, 71 (2d Cir. 1997).
When SSA determines that an individual is disabled within the
meaning of the Social Security Act, it does not take into account
whether or not the individual could perform the essential
functions of his or her job with a reasonable accommodation
pursuant to the ADA. See Cleveland v. Policy Mgt. Sys. Corp.,
526 U.S. 795, 803, 119 S.Ct. 1597, 1602 (1999). Therefore, a
finding of disability by SSA alone does not prevent Picinich from
establishing that he is a qualified individual with a disability
for purposes of an ADA claim. See id. However, where factual
assertions made before SSA conflict with those made later in an
ADA case, the plaintiff must provide a sufficient explanation in
order to prevent being estopped from asserting same. See id.
at 806-807. In order to defeat a motion for summary judgment, the
explanation "must be sufficient to warrant a reasonable [fact
finder's] concluding that, assuming the truth of, or the
plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless perform the
essential functions of the job, with or without reasonable
accommodation." See Parker v. Columbia Pictures Ind.,
204 F.3d 326, 333 (2d Cir. 2000), quoting Cleveland, 526 U.S. at
Here, UPS contends, in rendering his decision that Picinich is
disabled, the SSA ALJ took into consideration Picinich's
assertions regarding his physical restrictions after he became
disabled, as well as the requirements of the positions he
previously held at UPS, including the Security Manager position,
and therefore, Picinich cannot now claim that he was able to
perform the essential functions of those positions. Specifically,
UPS contends that Picinich made contradictory statements to SSA
and this court when, in his application for Social Security
Disability benefits, Picinich described the essential functions
of the Security Manager position as well as his physical
restrictions and stated that he could not attend work due to
extreme pain, but later told this court he could perform the
essential tasks of that position. See Aff. of Jonathan J.
Harper, Nov. 12, 2003 at Ex. 5, Dkt. No. 49. Therefore, UPS
argues, as in Mitchell, where the court held that plaintiff
there was judicially estopped from asserting, as a factual
matter, that he was capable of performing work other than in a
sedentary position, Picinich should be estopped from asserting
that he can perform the essential functions of any of the
positions he named in his work history as part of his application
to SSA for disability benefits. See Mitchell, 190 F.3d at 7.
However, unlike the plaintiff in Mitchell, Picinich did not
make contrary factual statements to SSA, CIGNA or this Court.
See Mitchell, 190 F.3d at 7. In Mitchell, the plaintiff
there told the Worker's Compensation Board and SSA that he was
unable to walk or stand for any length of time, but later told
the court he was able to stand and walk for a substantial portion
of the day. Id. Here, in his application for disability benefits, Picinich stated that he
"could no longer attend work due to extreme pain while performing
[his] job duties" and that his condition limits his ability to
lift, bend, twist, climb stairs, stand or sit too long, or drive
for more than twenty minutes. See Harper Aff. at Ex. 5, Dkt.
No. 49. These statements were in reference to the last position
he held at UPS, to wit, the Preload Manager position. Picinich
has not made contrary assertions to this court regarding his
ability to perform the essential functions of that position
without accommodations for his limitations. Nor has he made
contrary assertions to this court about his limitations in the
areas of lifting, bending, twisting, climbing, standing, sitting
In fact, assuming arguendo that "stooping, bending, crouching
and kneeling" are essential job functions of the positions
Picinich listed in his disability application, he offered a
sufficient explanation for how he can perform those jobs with a
reasonable accommodation, consistent with the Court's ruling in
Cleveland. See Picinich Aff. at ¶¶ 27-34, Dkt. No. 44. See
also Cleveland, 526 U.S. at 807.
Therefore, because the SSA ALJ did not take into account
whether Picinich could perform the essential functions of any
position at UPS with a reasonable accommodation, and because
Picinich did not make assertions of fact to this Court contrary
to those he made to SSA upon which it relied in approving his
application for disability benefits, he cannot now be judicially
estopped from asserting that he is a qualified individual with a
disability for purposes of his claim under the ADA.
In summary, regarding the third element of Picinich's failure
to accommodate claim, there are genuine issues of material fact
remaining regarding the following issues: (1) which functions of
the Preload Manager and Security Manager positions are essential
and whether Picinich could perform either of those positions, (2) whether UPS had a policy of reassigning management level
employees to positions across districts between January and May
of 2001, and (3) whether the accommodation Picinich requested, to
wit, transfer to a position outside the Upstate N.Y. District,
would have caused UPS undue hardship.
4. Whether UPS Provided Reasonable Accommodation
In order to make out a prima facie case of failure to
accommodate, Picinich must also demonstrate that UPS refused to
make a reasonable accommodation. See Mitchell, 190 F.3d at 6.
UPS was not required to provide any particular accommodation
Picinich requested, only some accommodation, as long as it was
reasonable. See Fink v. New York City Dep't of Personnel,
53 F.3d 565, 567 (2d Cir. 1995); Romanello, 2002 WL 31190169 at
a. Interactive Process
Essentially, Picinich argues that UPS refused to accommodate
him when it failed to engage in an interactive process in order
to identify his limitations and the appropriate accommodations
which would allow him to resume working. UPS argues that it is
Picinich who failed to engage in this process.
The ADA envisions that employees and employers will work
together in "an informal, interactive process . . . [which]
should identify the precise limitations resulting from the
disability and potential reasonable accommodations that could
overcome those limitations." See 29 C.F.R. § 1630.2(o)(3). See
also Lovejoy, 263 F.3d 208, 218-219; Jackan, 205 F.3d at
566. While Picinich has the burden of identifying an
accommodation, UPS is obliged to take affirmative steps to assist
Picinich in this process. See Jackan, 205 F.3d at 568 n. 4.
Included in this obligation is the requirement that UPS
communicate with Picinich in good faith. See Mengine, 114
F.3d at 420. Failure of an employer to act in good faith will preclude summary judgment against an employee on a claim of
failure to accommodate. See Taylor, 184 F.3d at 318-319.
Nonetheless, courts have not "found the interactive process to be
an independent source of liability irrespective of whether a
reasonable accommodation was actually offered (or conversely,
irrespective of whether one was actually possible). Rather, the
failure to engage in an interactive process is relevant only
where it leads to the more fundamental failure to provide an
accommodation." Yellow Freight System, 2002 WL 31011859, at
*24, citing Kvorjak v. Maine, 259 F.3d 48, 52 (1st Cir.
In order to show that UPS failed to participate in the
interactive process, Picinich must demonstrate that (1) UPS knew
about his disability, (2) he requested accommodations or
assistance for his disability, (3) UPS did not make a good faith
effort to assist him in seeking accommodations, and (4) he could
have been reasonably accommodated but for the lack of good faith.
See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-320
(3d Cir. 1999). However, where an employer makes reasonable
efforts to communicate with an employee, liability under the ADA
will not attach, and likewise, where the employee causes the
interactive process to collapse, the employer will not be liable.
See Donofrio v. New York Times, 99-CV-1576, 2001 WL 1663314
at *6-7 (S.D.N.Y. Aug. 24, 2001) (Mag. J. Francis), adopted by,
2002 WL 230820 (S.D.N.Y. Feb. 14, 2002); Economou v. Caldera,
99-Civ.-12117, 2000 WL 1844773 at *23-24 (S.D.N.Y. Dec. 18,
First, Picinich argues that UPS failed to engage in the
interactive process when, despite having knowledge of his
disability as early as January 2000, UPS did not commence its
internal ADA procedure until April 2000. Moreover, Picinich
contends that UPS gave misleading information to Dr. Kahn
regarding the Preload Manager position and, after suggesting to
Picinich that he could perform the position within his restrictions and that there would be a
supervisor there to assist him, when Picinich arrived at work,
the supervisor who was to assist him claimed he could not do so
because he was in a knee brace.
Next, Picinich contends that after April 2000, he repeatedly
asked UPS to return to work within his restrictions, to no avail.
Further, Picinich argues, even though Dr. Kahn released him to
work in January 2001. UPS did not meet with him to discuss
possible accommodations until April 2001. According to Picinich,
during this time many transfers of management personnel took
place at UPS and vacant positions were filled which he could have
performed. Specifically, Picinich argues that UPS failed to
engage in any meaningful communication with him when they failed
to discuss the opening of the Security Manager position in
Pennsylvania. Picinich notes that when he finally met with UPS
representatives in April 2001, the discussion was limited to the
Preload Manager position and, despite all of his previous
attempts to transfer, he was told that there was a freeze on job
openings and promotions as of the day prior to the meeting.
Picinich alleged he was then escorted from the property after
requesting to locate job vacancies, and was later effectively
prevented from finding any vacancies.*fn22
Picinich concludes that by delaying meeting with him to discuss
an accommodation and failing to assist him in finding vacant
positions, UPS acted in bad faith and impeded the interactive process. Therefore,
according to Picinich, UPS should not prevail on its motion for
UPS argues that it accommodated Picinich when it attempted to
have him return to work in April 2000, and that, despite its
instructions that Picinich work within his restrictions, he
failed to do so. UPS contends that the part time supervisor,
Scott Briggs, was not meant to be an accommodation, and that, as
a supervisor himself, Picinich was authorized to direct others to
perform functions that were outside of his restrictions.
Next, UPS argues that in January 2001, it initiated its 10-step
ADA procedure to determine whether Picinich could return to the
Preload Manager position with or without reasonable
accommodation. This procedure involved collecting information
from Picinich and submitting same to the District and Region
levels of UPS for a determination. Once said determination was
received, Dave Matt scheduled a meeting between himself, Picinich
and Robin Fey to review possible accommodations. Said meeting,
which occurred in April 2001, resulted in UPS concluding that
Picinich could not perform the Preload Manager position with or
without reasonable accommodation. UPS contends that it also
searched for alternative positions that Picinich could perform
within his restrictions, but did not find one until June 2001,
when defendant Wilson located an opening for a Yard
Controller/Dispatch position in Utica. However, according to UPS,
Picinich did not respond to its letter offer, and although
Picinich claims he never received it, he did have communications
with defendant Wilson about same, and never followed up when he
failed to receive the letter. Therefore, UPS concludes, because
Picinich allowed the interactive process to collapse, it is not
liable, and Picinich cannot now claim that it refused to
accommodate him. Before discussing these arguments, it is worth reviewing the
relevant time frames regarding Picinich's condition and work
restrictions. From January 20, 2000 until July 20, 2000, Dr. Kahn
reported that Picinich was temporarily totally disabled from
working in the Preload Manager position, except for the
approximate four day period in April 2000 when Dr. Kahn released
Picinich for work within certain restrictions. On July 20, 2000,
Dr. Kahn reported that Picinich was temporarily totally disabled
from any type of work activities, and this restriction remained
in place until Dr. Kahn released Picinich to work in a sedentary
job on January 5, 2001. Deposition testimony of Dr. Kahn revealed
that he determined Picinich to be unable to perform any type of
work from May 25, 2001 until August 28, 2001.
Therefore, to the extent the parties discuss the June 2001
offer by UPS to Picinich regarding the opening for the
Dispatch/Yard Controller Position in support of their respective
arguments, same is irrelevant since it is clear that Picinich was
unable to work in any position at that time.
i. April 2000
Although there are clearly questions of fact regarding whether
UPS refused to accommodate Picinich once Dr. Kahn released him
for work on April 10, 2000, Picinich's argument that UPS failed
to engage in the interactive process during the period prior to
April 10, 2000 is dubious. During this time, Dr. Kahn's reports
indicated that Picinich was unable to return to the Preload
Manager position, even with an accommodation. Moreover, Picinich
does not claim that he requested reassignment to another position
during that time. However, it is clear that once UPS became aware
that Picinich was released for work, it was required to act in
good faith to assist him in finding accommodations. See
Donofrio, 2001 WL 1663314 at *6-7; Economou, 2000 WL 1844773
at *23-24. Picinich argues that when he met with UPS representatives to discuss his return to
work on April 10, 2000, they did not ask him to identify any
accommodations, but merely instructed him to work within his
restrictions, and that a part time supervisor would be there to
assist him. UPS' response that Picinich was authorized to direct
others to perform functions that were outside of his restrictions
does little to overcome the questions of fact raised by Picinich
regarding whether UPS refused to accommodate him in April 2000.
ii. April 2000 through January 2001
From April 14, 2000 until July 20, 2000, Dr. Kahn's reports
indicated that Picinich was unable to return to the Preload
Manager position, even with an accommodation. From July 20, 2000
until January 5, 2001, Picinich could not work in any position,
with or without an accommodation, according to Dr. Kahn. Picinich
argues that he first requested reassignment to another position
during a conversation with Robin Fey on June 6, 2000. See Pl.'s
Ex. J, Fey Dep., 148-149, Dkt. No. 45. Therefore, there is a
short period of time where Picinich may have been deemed able to
work in another position with or without accommodation, after
Picinich requested reassignment. Picinich alleges that UPS failed
to provide him with information about job vacancies during, and
after, this time period, even though it was required to do so.
Although UPS argues that it had no affirmative duty to assist
Picinich in locating job vacancies outside the District, see
Mitchell, 190 F.3d at 9, whether such a duty exists relates to
the outstanding question of material fact regarding whether UPS
has a policy of reassigning management level employees between
districts, see supra at 31-35. This is because, as previously
stated, the intent of the ADA is to ensure that disabled
employees are treated the same as all other employees. See Mitchell, 190 F.3d at 9, citing Wernick v. Federal Reserve
Bank of New York, 91 F.3d 379, 384-85 (2d Cir. 1996).
iii. January 2001 through May 2001
Effective January 5, 2001, when Dr. Kahn again released
Picinich to work, UPS alleges it began its 10-step ADA procedure.
Picinich argues that, notwithstanding this allegation, UPS failed
to engage in the interactive process because he did not meet with
UPS representatives to discuss accommodations until April 4,
UPS submitted a copy of its written 10-step ADA procedure.
According to this procedure, a meeting with the employee is the
fifth step, to be completed after the following: (1) commencement
of the process, (2) gathering medical information, (3) evaluation
of whether the employee has a disability, and (4) notification of
the employee. See Harper Aff. at Ex. 16, Dkt. No. 40. The
estimated completion time for the first four steps is
approximately six weeks from the date UPS receives a request for
an accommodation. See id. Considering that Dr. Kahn continually
submitted his medical reports to Robin Fey throughout the period
that Picinich was out of work, and considering that Picinich
requested accommodations prior to January 5, 2001, it is
questionable whether UPS engaged in the interactive process in a
timely matter in light of the fact that its ADA procedure took
twice as long as estimated prior to its meeting with Picinich.
Therefore, Picinich has raised another material question of fact
regarding whether UPS refused to provide him with an
UPS contends that it provided Picinich with his full salary
from February 1, 2000 until May 9, 2001, and that this was a reasonable
accommodation. It is true that the ADA contemplates that a leave
of absence is an appropriate form of reasonable accommodation.
See Romanello, 2002 WL 31190169, at *9, citing Powers v.
Polygram Holding, Inc., 40 F. Supp.2d 195, 199 (S.D.N.Y. 1999).
See also Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.
1998). Picinich argues, however, that UPS fails to cite any
authority that a disability benefit provided as compensation for
employment is a reasonable accommodation under the ADA. Even if
such a benefit can be considered a reasonable accommodation,
Picinich argues, unlike the plaintiff in Romanello who asked
for three separate leaves of absence, he never requested a leave
of absence, and instead was continually requesting to return to
work. See Tr. at 27-28, Dkt. No. 57, citing Romanello, 2002
WL 31190169, at *9. Also, Picinich argues, unlike the plaintiff
in Romanello, who never contacted her employer after she was
able to return to work, Picinich contends he was in constant
contact with UPS throughout his disability leave. Id. Moreover,
Picinich argues that because his disability benefit was
contractual in nature, it cannot be considered a reasonable
First, Picinich's claim that there is no authority to support a
finding that a disability benefit like the one he received from
UPS is a reasonable accommodation is unfounded. In Criado, for
example, the Court of Appeals for the First Circuit found that
defendant IBM Corporation had a policy of providing its employees
with 52 weeks of paid disability leave, and held that such was a
reasonable accommodation within the meaning of the ADA. See
Criado, 145 F.3d at 444. Likewise, Picinich's argument that his
case is distinguishable because he never asked for a leave of
absence, and therefore, his disability compensation is not to be
considered a reasonable accommodation cannot be reconciled with
previously cited caselaw which holds that an employer is not required to provide
the accommodation requested by a disabled employee, only some
reasonable accommodation. See supra, at 40. Finally,
Picinich's contention that a benefit, which is a contractual
obligation, may not be considered a reasonable accommodation
pursuant to the ADA is dubious. Such a holding would be contrary
to the policy of the ADA to treat disabled and non disabled
employees alike, and could not be reconciled with the previously
cited rule of law that employers are not required to reassign a
disabled employee where there is no contractual duty or policy in
place for reassignment of non disabled employees. See supra,
Nonetheless, UPS points out that even if its disability
compensation plan was contractual,*fn23 and even if payments
pursuant to a contractual obligation cannot be considered a
reasonable accommodation, it was only required to pay Picinich
his full salary under this plan for twelve months. UPS argues
that since it continued to pay Picinich his full salary for two
months beyond this twelve month period while it engaged in the ADA procedure to assist Picinich in finding an
accommodation, those two additional months of salary constitute a
Picinich, although he contends that any disability payments he
received from UPS are not a reasonable accommodation, disagrees
with the time period that UPS suggests it paid Picinich his full
salary. According to Picinich, his short-term disability benefit
(at full pay) terminated and his long-term disability (at 60%
pay) commenced in March 2001, not May 2001 as UPS argues. See
Picinich Aff. at ¶ 15, Dkt. No. 44. According to a copy of a
"Separation Form" signed by Robin Fey on May 9, 2001, Picinich's
short-term disability benefit terminated and his long-term
disability benefit commenced on February 1, 2001. See Pl.'s Ex.
42, Dkt. No. 45. At his deposition, Wilson explained that the
discrepancy on the form was due to administrative requirements,
and that Picinich actually received his full salary until May 9,
2001. See Harper Aff. at Ex. 31, Wilson Dep. at 275:1-20., Dkt.
This disagreement between the parties is irrelevant, however,
since it is clear that leaves of absence, including those that
are paid pursuant to company policy, may be considered a
reasonable accommodation. See Criado, 145 F.3d at 444.
However, this alone does not relieve UPS of liability under the
ADA. An employer's duty to make reasonable accommodations is a
continuing one, and will not be satisfied by a single effort.
See Parker, 204 F.3d at 338. See also McAlindin v. County
of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999); Cehrs v.
Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 784 (6th
Cir. 1998); Criado, 145 F.3d at 445, (quoting Ralph v.
Lucent Techs., Inc., 135 F.3d 166, 171-172 (1st Cir. 1998),
citing Bultemeyer v. Fort Wayne Community Sch.,
100 F.3d 1281, 1285 (7th Cir. 1996)). As there are material questions of
fact outstanding regarding whether UPS refused to accommodate
Picinich by reassigning him, or by facilitating his return to work in April 2000, the provision of disability
benefits by itself will not be enough to award summary judgment
to UPS on Picinich's failure to accommodate claim.
In summary, there are genuine issues of material fact regarding
(1) whether UPS engaged in the interactive process with Picinich
in April 2000 in order to facilitate his return to the Preload
Manager position with accommodations, (2) whether UPS had a
policy of reassigning management level employees between
districts and therefore had a duty to assist Picinich in locating
vacancies for positions outside the Upstate N.Y. District, and (3)
whether UPS timely commenced and progressed through its 10-step
ADA procedure after Picinich requested an accommodation and was
released for work within restrictions by Dr. Kahn in January
2001. Therefore, because genuine issues of material fact remain
as to the third and fourth elements of Picinich's claim of
failure to provide a reasonable accommodation, defendants' motion
for summary judgment as to that claim is denied.
C. Count II: Discriminatory Discharge
The term, "discriminate" is also defined by the ADA as
denying employment opportunities to . . . a[n]
employee who is an otherwise qualified individual
with a disability, if such denial is based on the
need of [the employer] to make reasonable
accommodation to the physical or mental impairments
of the employee.
42 U.S.C. § 12112(b)(5)(B). Pursuant to NYHRL,
[i]t shall be an unlawful discriminatory practice for
an employer . . ., because of the . . . disability . . .
of any individual, to refuse to hire or employ or
to bar or to discharge from employment such
individual or to discriminate against such individual
in compensation or in terms, conditions or privileges
N.Y. Exec. L. § 296.1(a) (McKinney 2003). The analysis of a claim for discriminatory discharge is the
same under the ADA and NYHRL. See Parker, 204 F.3d at 332 n.
1. Picinich bears the burden of establishing his claim for
discriminatory discharge, the elements of which mirror those of
his first cause of action for failure to make a reasonable
accommodation. See id., citing Stone, 118 F.3d at 96-97.
Where a plaintiff establishes the first three elements of his
failure to accommodate claim, such failure "amounts to discharge
because of his disability. Id., citing Ryan, 135 F.3d at
870. Thus, if Picinich establishes the elements of his failure to
accommodate claim, the burden shifts to UPS to establish undue
hardship in order to defend against a claim of discriminatory
discharge. See id.
Because there are genuine issues of material fact remaining
regarding whether Picinich is a qualified individual with a
disability, whether UPS refused to accommodate him, and whether
the requested accommodations would impose an undue hardship upon
UPS, such that defendants' motion for summary judgment as to
Picinich's claim for failure to provide a reasonable
accommodation is denied, defendants' motion for summary judgment
as to Picinich's claim for discriminatory discharge is likewise
D. NYHRL Claims Against Individual Defendants
In the Complaint, Picinich sets forth a cause of action
entitled, "Violation of New York Human Rights Law by individual
defendants . . ." and alleges that "the individual defendants . . .
have an ownership interest in [UPS], had and have the ability
to hire, fire, and make other personnel decisions in regards to
individuals employed by [UPS], and aided and abetted the [UPS] in
failing and refusing to provide a reasonable accommodation of
[Picinich's] disability as required under [NYHRL]." Compl. ¶ 40.
During the hearing regarding these motions, Picinich voiced his intent to file two claims against the individual
defendants: employment discrimination pursuant to NYHRL §
296.1(a) and aiding or abetting employment discrimination
pursuant to NYHRL § 296.6. This court there held that under the
liberal pleading standard of Fed.R.Civ.P. 8(a), the additional
claim for aiding and abetting pursuant to § 296.6 would be
allowed. See Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99,
103 (1957). Upon further analysis of the NYHRL, the court now
holds that the allegations in Count III set forth claims pursuant
to §§ 296.1(a) (discriminatory discharge), 296.3 (failure to
provide reasonable accommodation), and 296.6 (aiding and abetting
violations of the NYHRL). Picinich's allegations in the Complaint
certainly comply with the requirement that he set forth "a short
and plain statement of the claim that will give [UPS] fair notice
of what [his] claim is and the grounds upon which it rests."
Conley, 355 U.S. at 47. It is worth mentioning here that,
although at the hearing regarding these motions, defendants'
counsel contended that he was unprepared to discuss the aiding
and abetting claim because § 296.6 was not cited by Picinich in
his complaint, defendants' moving papers contained arguments
against that very claim. Nonetheless, it is enough that
Picinich's complaint put defendants on notice of the claims
against them, and therefore, all three of the aforementioned
NYHRL claims against the individual defendants will be discussed.
1. Discriminatory Discharge Pursuant to § 296.1(a) and
Failure to Provide Reasonable Accommodation Pursuant to § 296.3
A corporate supervisor or manager may be subject to personal
liability under NYHRL § 296 only where said supervisor or manager
has been deemed an employer within the meaning of the NYHRL.
Therefore, as an initial matter, the court will address the issue
of whether defendants Grover, Canavan and Wilson are "employers"
within the meaning of NYHRL § 296. According to the New York Court of Appeals, a corporate manger or supervisor is not
considered an employer pursuant to NYHRL unless he is shown to
have (1) an ownership interest in the corporation or (2) any
power to do more than carry out personnel decisions made by
others. See Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542,
473 N.E.2d 211, 483 N.Y.S.2d 659 (1984) (emphasis added).
The Court of Appeals set forth an "economic reality" test for
determining whether a defendant constitutes a plaintiff's
employer pursuant § 296 under the second prong set forth in
Patrowich, to wit, whether an individual supervisor or manager
has the power to do more than carry out personnel decisions made
by others. See Heinemann v. Howe & Rusling, 260 F. Supp.2d 592,
598 (W.D.N.Y. 2003), citing Patrowich, 63 N.Y.2d at 544.
Under this test, the factors courts should consider are whether
the individual supervisor or manager (1) had the power to hire or
fire employees, (2) supervised and controlled employee work
schedules or employment conditions, (3) determined the rate and
methods of payment, and (4) maintained employment records. See
id. However, no single factor of this test is dispositive, as
"economic reality is based on all the circumstances."
Heinemann, 206 F. Supp.2d at 598, quoting Herman v. RSR Sec.
Servs., Ltd., 172 F.3d 132, 139 (2d Cir. 1999).
Defendants' sole argument against a finding that they are
considered "employers" is that, although they own stock in UPS,
not every stockholder of a corporation is an owner for purposes
of NYHRL violations. See Salomone v. Merrill Lynch,
96-Civ.-6570, 1998 WL 151036, at *3 (S.D.N.Y. Mar. 31, 1998).
Picinich correctly notes that a lack of ownership interest alone
is not dispositive under Patrowich, and defendants may still be
considered employers where they do more than carry out personnel
decisions. See Patrowich, 63 N.Y.2d at 542. Nonetheless,
Picinich points out that defendants do have an ownership
interest in UPS, noting that in Salomone, the defendant was merely entitled
to stock options, whereas here the individual defendants own
actual stock in UPS. See Salomone, 1998 WL 151036, at *3.
Furthermore, Picinich argues that, even if defendants did not
have an ownership interest, they did have the ability to do more
than simply carry out personnel decisions at UPS. For example, as
Human Resources Managers, Wilson and Grover had input into
promotions, and control over the termination and transfer of
employees as well as maintenance of records, see Pl.'s Ex. F,
Wilson Dep. at 167:3-168:9; Pl.'s Ex. J, Fey Dep. at 228:10-17;
Pl.'s Ex. G, Matt Dep. at 82:12-84:15; Pl.'s Ex. I, Canavan Dep.
at 41:11-12, Dkt. No. 45, and as District Manager, Canavan had
authority to promote and reassign employees, see Pl.'s Ex. G:
Matt Dep. at 83:12-15; Pl.'s Ex. I: Canavan Dep. at 22:3-12;
Pl.'s Ex. H: Grover Dep. at 149:6-10, Dkt. No. 45. Courts have
held that an issue of material fact exists as to whether an
individual supervisor or manager is an employer pursuant to § 296
where said individual, like Wilson and Grover, was charged with
the hiring and firing of employees, see Lapidus v. New York
City Chapter of the New York State Association for Retarded
Children, Inc., 118 A.D.2d 122, 131, 504 N.Y.S.2d 629 (N.Y.
A.D. 1986), or where, similar to defendant Canavan who had the
authority to promote or reassign employees, the individual
manager had the authority to set schedules and salaries, and to
assign hours to employees, without consultation, see Chamblee
v. Harris & Harris, Inc., 154 F. Supp.2d 670, 677 (S.D.N.Y.
Therefore, Picinich has established that an issue of fact
exists as to whether the individual defendants are considered
employers pursuant to NYHRL § 296. Nonetheless, defendants
Grover, Canavan and Wilson will not be liable under § 296.1(a) or
§ 296.3 unless he proves all of the elements of his substantive discrimination claims, here, failure to accommodate and
discriminatory discharge, respectively, and that the individual
defendants actually participated in the discrimination. See
Bennett v. Progressive Corp., 225 F. Supp.2d 190, 214 (N.D.N.Y.
2002), citing Beattie v. Guilderland Cent. Sch. Dist.,
124 F. Supp.2d 802, 805 (N.D.N.Y. 2000), (citing Tomka v. Seiler
Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)).
To briefly review, pursuant to NYHRL, it is "an unlawful
discriminatory practice" for an employer "to discharge from
employment" or "to discriminate against [an] individual in
compensation or in terms, conditions or privileges of employment"
because of, among other things, disability, see § 296.1(a), or
to "refuse to provide reasonable accommodations to the known
disabilities of an employee," see § 296.3. The analysis of
these NYHRL claims are identical to the analysis of claims
pursuant to their counterparts in the ADA. See
Lovejoy-Wilson, 263 F.3d at 212, n. 3; Parker, 204 F.3d at
332 n. 1.
Defendants argue that Picinich has not set forth any evidence
that any one of them has participated in the alleged
discrimination, or aided or abetted same. See infra, at
56-57. Defendants note that during Grover's tenure as Human
Resources Manager for the Upstate N.Y. District, Picinich was
considered totally disabled and Defendants Grover and Canavan
provided him with disability leave and even attempted to have
Picinich return to his position as Preload Manager with
accommodations. Once defendant Wilson became the Human Resources
Manager, defendants argue, he participated in the company's ADA
procedure with Picinich and attempted to locate alternative
positions for him within the District.
The foregoing arguments mirror those set forth by defendant UPS
in support of its motion for summary judgment on the merits of
the underlying ADA and NYHRL claims against it. Upon
consideration of those arguments and the evidence of record, this court has already concluded that genuine issues
of material fact remain regarding whether defendant UPS engaged
in the interactive process with Picinich in April 2000, and
whether it timely commenced and progressed through its 10-step
ADA procedure in January 2001. See supra, at 51. The
participation of individual defendants Grover and Canavan in the
alleged failure to provide reasonable accommodation in April 2000
is documented in the record, see Pl.'s Ex H, Grover Dep. at
147:5-14, 148:5-149:25, 155:9-21, 158:8-20, Dkt. No. 45; Pl.'s
Ex. I, Canavan Dep. at 26:3-6, Dkt. No. 45, as is defendant
Wilson's participation in the alleged failure to accommodate from
January through May 2001, see Pl.'s Ex. F. Wilson Dep. at
103:8-104:4, 118:14-119:23, 122:6-18, 128:2-129:11, 136:5-22,
141:14-146:16, 150:7-172:11, Dkt. No. 45. Therefore, because
genuine issues of material fact remain regarding whether the
individual defendants (1) are employers within the meaning of
NYHRL, and (2) participated in the alleged discrimination giving
rise to violations of the NYHRL, defendants' motion for summary
judgment as to Picinich's claims pursuant to §§ 296.1(a) and
296.3 is denied.
2. Aiding or Abetting Employment Discrimination Pursuant to
Pursuant to NYHRL § 296.6, "[i]t shall be an unlawful
discriminatory practice for any person to aid, abet, incite,
compel or coerce the doing of the acts forbidden under [the
NYHRL], or to attempt to do so." N.Y. Exec. L. § 296.6 (McKinney
2003). In order for a plaintiff to recover against an aider or
abettor of NYHRL violations pursuant to § 296.6, he must
establish "(1) that [defendant] engaged in conduct protected by
the NHYRL; (2) there is a causal connection between the protected
conduct and the alleged [violations] of the NYHRL; and (3) that
[defendant] `actually participated' in the discrimination."
Beattie, 124 F. Supp.2d at 805, citing Tomka, 66 F.3d at
1317. Personal liability under this section of NYHRL is broader than
that of, for example, § 296.1. See Perks v. Town of
Huntington, 251 F. Supp.2d 1143, 1160 (E.D.N.Y. 2003). Under §
296.6, an individual supervisor or manager may be held personally
liable for aiding or abetting a violation of the NYHRL by their
corporate employer if they participated in the conduct giving
rise to a discrimination claim, even where said individual lacked
the authority to hire or fire employees. See Feingold v. New
York, 366 F.3d 138, 158 (2d Cir. 2004), citing Tomka, 66
F.3d at 1317.*fn24 Here, the court has already held that
genuine issues of material fact exist regarding whether the
individual defendants participated in the alleged discrimination
giving rise to violations of the NYHRL. See supra, at 54.
Therefore, defendants' motion for summary judgment as to
Picinich's claim pursuant to NYHRL § 296.6 is denied.
There are genuine issues of material fact remaining regarding
the third and fourth elements of plaintiff's claim against
defendant UPS for failure to provide a reasonable accommodation,
to wit, whether plaintiff was a qualified individual with a
disability within the meaning of the ADA, and whether UPS refused
to accommodate plaintiff. There are also genuine issues of
material fact remaining as to whether the requested
accommodations would impose an undue hardship upon UPS. Also, the
remaining claim against defendant UPS, to wit, discriminatory
discharge, as well as the claims for NYHRL violations against
individual defendants, Grover, Canavan and Wilson, necessarily
depend on resolution of the questions of material fact regarding the failure to accommodate
claim. Accordingly, defendants' motion for summary judgment
against plaintiff on the entire complaint is hereby DENIED.
Plaintiff has established as a matter of law the first two
elements of his failure to accommodate claim against defendant
UPS, to wit, that he was disabled within the meaning of the ADA
and that defendant UPS had notice of same. Therefore, Plaintiff's
cross motion for partial summary judgment against defendant UPS
regarding the first two elements of his failure to accommodate
claim is hereby GRANTED.
IT IS SO ORDERED.