The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiff Chris Hatzakos ("Plaintiff") brings this action against Acme American Refrigeration, Inc., Acme American Repairs, Inc. and Acme American Environmental, Inc. (collectively "defendants") for discrimination on the basis of disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). He contends that defendants fired him because he suffered from depression.Plaintiff also asserts discrimination claims in violation of the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, New York City Admin. Code § 8-107 et seq. ("NYCHRL"). Plaintiff brings an additional claim against defendant Matthew Dickmann ("Mr. Dickmann") for aiding and abetting in violation of NYSHRL § 296.6 and NYCHRL § 8-107(6). Finally, plaintiff alleges that he suffered intentional infliction of emotional distress. Before the court is defendants' motion for summary judgment. For the reasons set forth below, defendants' summary judgment motion is denied.
1. Plaintiff's Employment at Refrigeration
On October 3, 2002, Mr. Dickmann, the president of Acme American Refrigeration, Inc. ("Refrigeration"), interviewed and hired plaintiff to work as a technician's helper/trainee. (Dickmann Aff. ¶ 4.) Refrigeration is a New York corporation engaged in the business of repair, maintenance and installation of refrigeration equipment for large institutions, such as hospitals, universities, nursing homes and penal institutions. (Dickmann Aff. ¶ 3.) As a technician's helper/trainee, plaintiff was assigned to work with other mechanics as a member of a two man team. In that capacity, plaintiff was exposed to high voltage, heavy equipment, and used electric tools and welding equipment. (Hatzakos Dep. 38, 41-42, Mar. 8, 2005; Dickmann Dep. 233-34, 245-47, 249, Mar. 9, 2005.) Following the interview, Mr. Dickmann gave plaintiff a copy of Refrigeration's "Rules of Conduct" which provide in relevant part:
Excessive or habitual absences or lateness is grounds for disciplinary action whether such absence is with pay or not. As an integral part of our working force, your prompt attendance is necessary. You should attend to personal matters outside the Company's time. The first unexcused lateness or absence will result in a warning.
The second unexcused lateness of absence will result in suspension. A third unexcused lateness will be subject to immediate discharge. (Dickmann Aff. ¶ 4, Ex. B, Section 3.) Mr. Dickmann advised plaintiff to call the office if he was ever going to be absent from work. (Hatzakos Dep. 29.) At no time during the interview or thereafter, until late February 2003, did plaintiff advise defendants, or were defendants aware, that plaintiff was suffering from depression. (Dickmann Aff. ¶ 4.)
Plaintiff was employed by Refrigeration from October 4, 2002 until a date in late February, sometime after February 24, 2003. (Dickmann Aff. ¶ 4.) During that time, plaintiff was absent on December 4 and 26, 2002, January 3, 9, 10, 13, 21 and 31, 2003 and February 12, 13, 17 and 24, 2003. (Dickmann Aff. ¶ 5, Ex. C.) Plaintiff called in sick on the mornings he was absent from work to notify the appropriate individuals that he would be unable to work that day. (Defs.' Mem. Supp. Summ J. 6; Dickmann Aff. ¶3, Ex. C.) Mr. Dickmann alleges that he received complaints from mechanics on several occasions about plaintiff's absences. (Dickmann Dep. 193-94, 211-12, 282.) On at least two occasions prior to the meeting at which Mr. Dickmann placed plaintiff on a leave of absence, Mr. Dickmann informally warned plaintiff about his absences. (Dickmann Dep. 34-36, 172, 193.) However, plaintiff contends that these conversations occurred "in passing," and that at no time was plaintiff informed that his absences threatened his job security. (Dickmann Dep. 192.)
In or around late February 2003, Mr. Dickmann called plaintiff into his office for a meeting. (Hatzakos Dep. 36; Dickmann Dep. 215-19.) Mr. Dickmann contends that he intended to fire plaintiff at the meeting due to his chronic absenteeism. (Dickmann Aff. ¶¶ 5, 6, Ex. E.) Plaintiff's and Mr. Dickmann's versions of the conversation differ, but it is uncontested that, at some point during the meeting, Mr. Dickmann asked plaintiff whether he suffered from depression and if he was taking any medication as part of his treatment. (Hatzakos Dep. 36; Dickmann Dep. 222-23, 225-26.) When plaintiff answered in the affirmative, Mr. Dickmann requested the name and telephone number of plaintiff's treating psychiatrist because he wanted to ensure that plaintiff's condition did not subject plaintiff or his co-workers to any danger. (Hatzakos Dep. 38, 41, 45, 49.) Mr. Dickmann testified that his former business partner, Harvey Katzenberg, had also suffered from depression, and he had noticed that plaintiff, like his former business partner, would occasionally seem to be "in his own world" and would stand by himself, refusing to interact with his co-workers. (Dickmann Dep. 224, 229-30, 283-84.) At the conclusion of the meeting, Mr. Dickmann placed plaintiff on an unpaid leave of absence that was to last until Mr. Dickmann could speak with plaintiff's psychiatrist regarding his condition and/or a "light duty" assignment could be found. (Dickmann Aff. ¶ 6.) Mr. Dickmann instructed plaintiff to call defendants' office periodically to see if a suitable assignment for plaintiff had been found. (Dickmann Aff. ¶ 6.)
Approximately a week after the February 2003 meeting, Mr. Dickmann called plaintiff's psychiatrist, Dr. John Tsiouris. (Dickmann Dep. 244-47.) Dr. Tsiouris confirmed that plaintiff was under his care and fit to work. (Dickmann Dep. 247.) However, Mr. Dickmann contends that Dr. Tsiouris "did not guarantee that [plaintiff's] medications did not pose a danger to himself, his peers, and the client." (Wigdor Aff.¶ 7, Ex. D at 2.) Although Mr. Dickmann does not "remember exactly what [Dr. Tsiouris] said [in response to the question whether the medication could pose a threat risk]," it was "[s]omething along the lines [of] he's stable, he's okay." (Dickmann Dep. 252.) As instructed, plaintiff repeatedly called the office to see if defendants had found a new position for him. (Hatzakos Dep. 44.) Mr. Dickmann contends that, although he made an effort to find a part-time position for plaintiff, he was unable to do so. (Dickmann Aff. ¶ 6.) Mr. Dickmann subsequently terminated plaintiff's employment. (Dickmann Dep. 206.)
3. Plaintiff's Medical Condition
Plaintiff allegedly suffers from Bipolar II Disorder, Panic Disorder without Agoraphobia and Dependent Personality Disorder, and has been receiving care from a psychiatrist, Dr. Tsiouris, since September 8, 1994. (Wigdor Aff. ¶ 7, Ex. E.) Plaintiff's treatment includes antidepressant and mood stabilizers. (Wigdor Aff. ¶ 7, Ex. E.) A letter from Dr. Tsiouris to the EEOC dated May 30, 2003 states that plaintiff's "condition is stable, [but a] few times a year he experiences mild depressive episodes and brief hypo manic episodes of his mood disorder." (Wigdor Aff. ¶ 7, Ex. E.)
On May 12, 2003, plaintiff filed a charge with the United States Equal Employment Opportunity Commission ("EEOC") alleging that defendants' actions violated Title I of the ADA. Mr. Dickmann responded to the charge with a letter dated July 7, 2003, which states in relevant part:
A conversation with [plaintiff's] physician some time later confirmed his condition, but did not guarantee that the medications did not pose a danger to himself, his peers and the client while performing some of the more demanding duties. We are not satisfied ...