The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Yolanda Parker sued the City of New York and New York City Off-Track Betting ("OTB") alleging, among other things, that she was terminated from her job as a telephone betting agent for OTB in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.. Parker also claims that her termination was motivated by racial discrimination, and she seeks damages therefor pursuant to 42 U.S.C. § 1981. I previously dismissed Parker's Title VII claims for gender- and race-based discrimination in a Memorandum and Order issued November 18, 2004, familiarity with which is assumed, because Parker failed to present them first to the Equal Employment Opportunity Commission ("EEOC").
The defendants have moved for summary judgment on Parker's remaining claims. I heard oral argument on the motion on May 12, 2006 and reserved decision. For the reasons set forth below, the motion is granted in part with respect to Parker's FMLA claim; it is otherwise denied. I assume the parties' familiarity with the background of the case and the proceedings so far. I write this brief memorandum in order to crystallize the issues for trial.
The defendants' motion for summary judgment on Parker's ADA claim does not present a close question. In order to make out a prima facie case under the ADA, a plaintiff like Parker who claims that she can perform a particular job with a reasonable accommodation must show that she "is a person with a disability under the meaning of the ADA; (2) [her] employer [is] covered by the statute [and] had notice of [her] disability; (3) with reasonable accommodation, [she] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations." Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004).
Parker's "chronic" violations of OTB's Agent Productivity Reports ("APR") policy -- requiring that a betting agent be logged into her work station for at least 80% of her shift -- amounted to total of approximately five and one-half hours of extra time away from her work station between December 2000 and August 2002. And evidence in the record shows that OTB allowed at least one other disabled worker to use her sick and annual leave time to compensate for such minor deficiencies. Specifically, Doreen Wong, OTB's Equal Employment Opportunity Officer, wrote to Mitchell Ross as follows:
As you know, a Telephone Agent is not subject to disciplinary actions if the time he or she is permitted to be away from his workstation is less than 20% of the workday, or 84 minutes in a 7 hour shift .... If you find that you need additional time over and above this amount due to your medical condition, [then as an accommodation] [y]ou will be permitted to charge this additional time to your available sick leave balance. If you have exhausted your sick leave, you will be permitted to utilize any available annual leave. If you have exhausted both your sick leave and annual leave, you will not receive compensation for this additional block of time.
Supplemental Declaration of Ali Ayazi, Ex. SS. Had Parker been afforded the same accommodation, she would have been required to allocate less than one day's sick leave to make up for the whole of her "chronic" problem. That, it seems to me, would have been an eminently reasonable accommodation, yet OTB fired Parker instead.
OTB's argument that Parker failed to give notice that her disability was the reason for her continued appearance on the APR is unpersuasive and, in any event, does not warrant summary judgment. For one thing, Parker disputes it by stating that she repeatedly told her supervisors she needed more time than the APR rule afforded her because of her back problems. That alone is enough to get past summary judgment, as the jury might reasonably believe Parker's testimony to that effect.
In addition, Wang's letter to Parker specifically acknowledges that Parker "inquired about the possibility of being given an exotic schedule," Declaration of Ali Ayazi, Exhibit U, which would have allowed Parker to work longer shifts (9-12 hours) fewer days a week. Parker claims she requested such a schedule so that she could use her days off both to attend physical therapy to rest her back, which would have left her feeling comfortable enough to comply with the 80% rule on her work days. The defendants have come forward with little evidence that this accommodation would have been burdensome at all, much less unduly burdensome. Indeed, Parker's supervisor Sebastian Camuti testified at his deposition that allowing Parker to work longer shifts fewer days a week would not have caused OTB any financial loss. Plaintiff's Statement of Disputed Facts, Ex. C at 130.
Finally, the defendants' argument, based on Dr. Bernadette Sheridan's letter of September 24, 2003, that Parker has been completely unable to work from the time that she was terminated is one they will have to make to the jury. In my view, Dr. Sheridan's letter is ambiguous at best. It states:
[Yolanda Parker] has been under my care from 1/13/2003. Ms. Parker was terminated from employment 2/7/03. Since that time, she has been unable to seek employment due to worsening Lumbar Spondilolithesis. She has had Neurosurgical, Orthopedic, and Rehabilitation Medicine consultations ...