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McNamara v. Tourneau

July 30, 2007


The opinion of the court was delivered by: Chin, D.J.


In this employment case, pro se plaintiff Charles McNamara alleges that his former employer, defendant Tourneay, Inc. ("Tourneau"), discriminated against him because of his alleged disability and retaliated against him for complaining of discrimination to the New York City Human Rights Commission (the "Commission"). Tourneau moves for summary judtment dismissing the complaint. For the reasons that follow, the motion is granted.


A. The facts

For purposes of this motion, the facts are drawn principally from McNmara's own deposition and are construed in the light most favorable to him, as the party opposing summary judgment.

1. Tourneau Hires McNamara

In December 2003, Tourneau, a watch retailer, hired McNamara as a sales associate at its 57th Street store in Manhattan. (Pl. Dep. 8, 12, 36; Charge, Attach. ¶ 2).*fn1 His duties included taking watches out of the safes and setting them up in their display cases in the morning; greeting potential customers and showing and selling them watches once the store opened; and removing the watches and returning them to the safes when the store closed at the end of the day. (Pl. Dep. 38, 40). Throughout his employment, until he suffered the injury that led to this case, McNamara performed his duties well. (Charge, Attach. ¶ 3).

McNamara worked five days a week, from approximately 9 a.m. to 7 p.m. The nature of the job required him to be at the store, on his feet virtually all day. (Pl. Dep. 38-41).

2. McNamara Is Imjured

On June 3, 2004, as he was on his way to work, McNamara fell a few blocks from his home. He tripped on a "very steep crack and division in the sidewalk," and injured his back and leg. (Id. at 27-28). He walked home and asked a friend to call Tourneau to tell his supervisors what happened and that he would not be coming to work. (Id. at 29-30; see Charge, Attach. ¶ 5).

That afternoon, McNamara drove himself to see his doctor, Dr. Steven Goldberg. (Pl. Dep. 29). Dr. Goldberg diagnosed McNamara with sciatica. (Id. at 30). McNamara was experiencing pain in his lower back. (Id.). He also eventually began feeling pain in his leg. (Id.). Prior to June 3, 2004, he had not experienced problems with his lower back or leg. (Id. at 30-31). Dr. Goldberg told McNamara that if he was not "totally better" within a week, he was to see an orthopedist. (Id. at 31).

After his doctor's visit on June 3, 2004, McNamara called Tourneau and reported that he had fallen and injured his back, he had visited his doctor, and the doctor had said that if he were not feeling substantially better within a week he was to see an orthopedic physician. (Id. at 45). At that point, McNamara was unable to work, with or without accommodation, and he did not, as far as he could recall, provide Tourneau with a doctor's note. (Id. at 46-47).

Between June 3 and June 10, 2004, McNamara did not speak again to anyone at Tourneau. (Id. at 48). He did not request any accommodation from Tourneau, nor did he tell anyone at Tourneau when he would be able to return to work. (Id. at 48-49). He did not see any doctors during that time. (Id. at 49).

By June 10th, although he was not ready to return to work, he felt that he could return to work with a few more days of rest. (Id. at 50, 56-57). That day, he visited an orthopedist, Dr. Michael Errico, who also diagnosed plaintiff with sciatica. (Id.). Dr. Errico filled out a form for McNamara, dated June 10, 2004 and addressed "To whom it may concern," that stated that McNamara "[w]as in the office today for an evaluation" and that:

If Pt begins to experience pain intensifying he is to limit activity including standing and if persists is to leave work. (PX 3). The form had boxes to indicate whether the patient was totally or partially disabled, could not return to work, or could return to work with light or full duty, but none of these boxes was checked. (Id.). Finally, the form stated that McNamara would be "re-evaluated" on July 1, 2004. (Id.).

3. McNamara Returns to Tourneau

After seeing Dr. Errico, McNamara took the subway and a bus to the Tourneau store, where he met with a supervisor, Maria Ho. (Pl. Dep. 50-51). He gave Ho a copy of Dr. Errico's note and stated that he thought he would be able to return to work "in a few days." (Id. at 51). He volunteered to return the following Sunday, June 13th. (Id. at 51, 54). Ho called the store manager, Ammar Murad, who joined the meeting. (Id.). McNamara gave him the same report, and Murad responded that he would have to speak to Tourneau's attorney before authorizing McNamara to return to work. (Id. at 51-52). McNamara did not tell either Ho or Murad that he would need any kind of accommodation to return. (Id. at 54-55, 57).

On June 11th, McNamara spoke to Murad by telephone. Murad said he had not been able to reach Tourneau's attorney, and that he could not approve McNamara's return until he spoke to the attorney. He asked McNamara to call him the following Monday, June 14th. (Id. at 57).

On June 14th, McNamara called Murad, and Murad authorized McNamara to return the next day. (Id. at 58). During the conversation, McNamara did not request any accommodation upon his return to work, but Murad offered to accommodate McNamara by permitting him more opportunities to sit and rest than would normally be allowed. (Id. at 59-60; see Charge, Attach. ¶ 11). The same day, McNamara faxed to Murad a copy of a note from Dr. Goldberg dated June 10, 2004. (Pl. Dep. 61; PX 2). The note did not address McNamara's ability to return to work, but merely stated:

Mr. McNamara suffered a fall on a cracked sidewalk and injured his back and his leg.

He was given a prescription for Vioxx and was told to rest his leg and his back and to follow up with an orthopedic doctor. (PX 2; see Pl. Dep. 62). McNamara did not see Dr. Goldberg again after the initial visit on June 3rd. (Pl. Dep. 63).

McNamara returned to work at Tourneau on June 15th, commuting by bus and subway. (Id. at 63-64). He had not asked Tourneau for any accommodation prior to returning to work. (Id. at 63). After setting up the display cases, he went to the men's room and then his locker. (Id. at 64-65). As he returned to the sales floor, he walked by the office of his sales manager, Ho, and she asked him whether he had requested permission to leave the floor. (Id. at 65). Fifteen minutes later, McNamara asked Ho for a break; she said no, explaining that McNamara had just had a break. (Id. at 65-66). McNamara did not tell her that he needed a break because of his back, nor did he complain to anyone at Tourneau that she had refused to let him take a break. (Id. at 66, 68). Some twenty to thirty minutes later, Ho told McNamara that he could take a break. (Id.). He was not refused any other breaks nor did he ask for any other accommodation that day. (Id. at 68).

The next day, June 16th, McNamara felt well enough to return to work, and he did so. (Id. at 68-69). He asked for a break in the morning and was granted one. (Id. at 69-70). In the afternoon, he asked a supervisor, Cathy Prior, if he could leave early. (Id. at 70). Prior gave him a "hard time" by saying his leaving early was not fair to his colleagues because they would be required to take on his work. (Id.). He explained, however, that he needed to leave early because of his back, and she agreed that he could leave early. (Id. at 71).

4. McNamara Is Unable To Work Again

On June 17th, McNamara called in sick again. (Id. at 71-72). He does not recall to whom he spoke at Tourneau, but his back and leg pain were worse than they had been, and he explained that he was unable to work because of the pain. (Id. at 72, 73- 74). From June 17th to June 20th, he was still unable to work, regardless of any accommodation. (Id. at 75-76). On June 20th, he spoke to Prior and explained that he did not feel well enough to return to work. (Id. at 76). He told her that he was going to see his doctor again, and he did not know when he would be able to return. (Id. at 76-77). McNamara did not request any accommodation from Tourneau, but merely told Prior that he would need to rest before returning to work. (Id. at 77).

On June 21st, McNamara saw Dr. Errico again. (Id. at 77-78). Dr. Errico filled out a form, dated June 21, 2004, similar to the one he had filled out on June 10th. (DX E; see PX 3). The June 21st form stated that McNamara was being treated for sciatica and again none of the boxes regarding being disabled or returning to work was checked off. (DX E). Dr. Errico did not state in the note that McNamara could not return to work. Instead, he wrote only that McNamara had been in the office for an evaluation and was to limit the amount of standing for one to two weeks. (Id.). McNamara was to be re-evaluated on August 3, 2004. (Id.). Dr. Errico did prescribe a home exercise program, which included "Active Exercise," for six weeks. (Id.).

After the visit, McNamara called Murad and told him that he needed to minimize the time on his feet for a minimum of one to two weeks. (Pl. Dep. 78). He faxed a copy of Dr. Errico's notes to Murad. (Id.). At that point, McNamara thought he would be unable to work for another week or two. (Id. at 80-81).

5. McNamara Tries To Return to Work

On June 25th, McNamara took the bus and subway to the Tourneau store and spoke to Ho and Murad. (Id. at 85-86). He told them he was experiencing too much pain to return to work at that time. (Id. at 86). He told them that he thought he would be able to return sometime before July 5, 2004, and he did not request any accommodation or suggest that any accommodation would enable him to return to work at that time. (Id. at 86-87). Murad said he would speak to Tourneau's attorney. (Id. at 87).

The next day, June 26th, McNamara called Murad. (Id.). Murad told him that Tourneau's attorney had said that physical therapy did not preclude McNamara from returning to work, and Murad "demanded" that McNamara return to work the next day. (Id. at 88). McNamara told Murad that it was not the physical therapy that was preventing him from returning to work, but it was the pain in his back and leg. (Id. at 88-89). Murad told McNamara that if he did not return to work, Tourneau would treat McNamara "like any other Tourneau employee that didn't come to work." (Id. at 89). McNamara interpreted this comment to mean that he would be fired if he did not return to work. (Id. at 67; see Charge, Attach. ¶ 21).

On June 28th, McNamara returned to work, without having made any attempt to call Dr. Errico or any other doctor. (Pl. Dep. 92-93). The commute aggravated his back, however, and he was unable to work. (Id. at 104). There was no accommodation that would have enabled him to work, and he did not request any accommodation other than asking for more time off. (Id. at 106). After fifteen minutes or so he left. (Id. at 107). He did not go to see his doctor, and instead went to see his physical therapist. (Id.). He did not tell anyone at Tourneau when he would be able to return to work. (Id.).

6. McNamara Contacts the Commission, But Fails To Return To Work

After he left Tourneau on June 28th, McNamara did not speak to anyone at Tourneau again until July 2nd, when he spoke to Ho. (Id. at 110). That day, he contacted the Commission and scheduled an appointment for July 20, 2004. (Id. at 123). He called Ho afterwards "[j]ust to keep her informed." (Id.). He told her that his condition was worsening and that he felt he "was being harassed by Tourneau." (Id. at 124). Consequently, he told her, he had contacted the Commission. (Id.). He hoped that by telling her he had scheduled an appointment with the Commission, Tourneau would stop "harassing" him. (Id.). He felt that Tourneau was harassing him by "demanding that [he] return to work prior to feeling well enough." (Id.). McNamara did not tell Ho when he would be able to return to work, nor did he ask her for any accommodation that would enable him to return to work. (Id. at 128). McNamara did ask that he be permitted to remain out of work until he felt well enough to return, but he did not know when he would be able to return to work. (Id. at 111-12). Ho asked McNamara to speak to Tourneau's attorney, Stuart Fisher. (Id. at 133).

McNamara obtained no notes from any of his doctors after the June 21st note from Dr. Errico stating that he should limit the amount of standing for one to two weeks. (Id. at 101-02, 113). With the possible exception of calling Dr. Errico's office to move up his August appointment, McNamara did not call or see his doctors again prior to July 20th. (Id. at 107-09, 125-27).

From July 2, 2004 through July 8, 2004, McNamara still was unable to return to work, with or without accommodation, (Id. at 132-33). During that period, he did not speak with anyone at Tourneau, nor did he provide any additional doctors' notes, nor did he make any effort to obtain any additional doctors' notes. (Id. at 133-35). He still felt that he could not ...

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