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Cusack v. News America Marketing In-Store Services

July 2, 2008


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff Devi Cusack, a former employee of defendant News America Marketing In-Store Services, LLC ("NAMIS"), brings this action alleging claims for discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. NAMIS denies that it unlawfully discriminated against Cusack and contends that she was terminated because NAMIS reasonably believed that she acted dishonestly and fraudulently manipulated the company's disability benefits policy. NAMIS now moves for summary judgment on all claims. The motion will be granted.


NAMIS provides "in-store advertising, promotion and sales merchandising services for consumer packaged companies (such as Nabisco, Colgate-Palmolive and Kraft) in retail food and drug stores across the country." (D. Rule 56.1 Stmt. ¶ 5.)*fn1 Cusack, who was thirty-eight years old at the time the complaint was filed in August 2006, worked for NAMIS pursuant to an at-will employment agreement which provided that she could be terminated "by the Company at any time for any or no reason." (Id. ¶ 4.) In November 2003, Cusack was promoted to Area Field Merchandising Manager ("Area Manager"), the position she held until she was terminated in November 2005. (Id. ¶ 3.)

The responsibilities of an Area Manager include "program management, client relations, budget development and hiring, training, supervising, auditing and disciplining in-store representatives." (Id. ¶ 7.) The position operates on thirteen four-week cycles per year. (Id. ¶ 9.) The first week of each cycle is known as "ad-change week," during which Area Managers are responsible for ensuring that NAMIS representatives visit retail stores and replace advertising displays and marketing materials. (Id. ¶ 10.) During the second and third weeks of each cycle, Area Managers ensure that the promotional materials installed in the previous weeks remain installed in their proper place. (Id. ¶ 11.) The final week of each cycle consists of meetings and preparation for the next cycle's advertising changes. (Id. ¶ 12.)

Of the four weeks in the cycle, the first week is the most time-consuming, sometimes requiring in excess of 10-12 hours of work per day from the Area Managers. (Id. ¶ 13.) Cusack testified at her deposition that Area Managers worked "until the job got done" because "[t]he company had time sensitive materials." (Cusack Dep. 92:15-17.) Cusack stated that the Area Manager position "is not a nine-to-five job," that she "worked generally more than eight hours a day," and that "flexibility" is a requirement. (Id. at 95:15-96:23.) Indeed, Cusack acknowledged that when she began as an Area Manager, she often "worked between 12 and 20 hours a day." (Id. at 95:18-22.) Other NAMIS employees also testified that it was not possible to perform the functions of an Area Manager "working less than eight hours a day[,] [e]specially during ad change week." (Weiss Dep. 90:21-23.)

On September 26, 2005, complaining of various medical problems, Cusack began a medical leave of absence pursuant to the FMLA. (D. Rule 56.1 Stmt. ¶ 17.) During her leave, Cusack was eligible for and received short-term disability benefits from NAMIS. (Id. ¶ 18.) On November 9, 2005, Cusack faxed a Return to Work Certification ("RWC") prepared by her physician to NAMIS Benefit Representative Laura Bailey-Voros. (Id. ¶ 19.) The RWC stated that Cusack was available to resume work beginning on November 21, 2005, but that she had a "permanent" restriction that prevented her from working "more than 8 hours a day." (Id. ¶ 20.)

Upon receiving the RWC, Bailey-Voros informed NAMIS's Director of Field Human Resources, Robert Weiss, of Cusack's eight-hour work restriction. (Id. ¶ 21.) Weiss then contacted NAMIS's employment law counsel, J. Jordan Lippner, who advised him that if Cusack could perform her job within the eight hour per day restriction, she should be reinstated as an Area Manager. (Id. ¶¶ 23-25.) After speaking with several members of NAMIS management, Weiss informed Lippner that it would not be possible to accommodate Cusack's restriction since the Area Manager position requires a flexible schedule, often requiring work days exceeding eight hours. (Id. ¶ 30.) Lippner instructed Weiss to ascertain whether NAMIS had any other positions available for which Cusack was qualified and which could accommodate her eight hour work restriction, and if so, to offer Cusack that position. (Id. ¶ 31.) Weiss determined that given Cusack's restriction, only one such position was suitable and available: In-Store Representative. (Id. ¶ 32.)

On November 15, 2005, Bailey-Voros called Cusack and informed her that as a result of her permanent restriction, she could not return to the Area Manager position but offered her the In-Store Representative position instead, which Cusack declined. (Id. ¶¶ 34-35.) Cusack then told Bailey-Voros that "if [NAMIS] would not accept my restrictions of eight hours a day, I will take the restrictions off. I will do whatever you want." (Cusack Dep. 69:10-12.) Cusack proceeded to ask Bailey-Voros, "what should my restrictions have said? Twelve, 15 or 20 hours? What is expected of this company? Tell me, because I will ask my doctor to change it." (Id. at 170:17-20; see Ballantyne Decl. Ex. 16.) In response, Bailey-Voros told Cusack that she could not instruct her on what to have her doctor write. (D. Rule 56.1 Stmt. ¶ 38.) Later that same day, Cusack called Bailey-Voros back and told her that she had changed her mind and would not ask the doctor to remove the permanent restriction, but instead would ask her doctor to prepare a "revised note" that would state that Cusack was not ready to return to work and needed additional disability leave. (Cusack Dep. 134:4-7; see Bailey-Voros Decl. ¶ 10.) In her affidavit submitted in conjunction with the pending motion, Cusack denies ever asking her doctor to remove the restriction, but nevertheless admits that she told Bailey-Voros that "[w]hatever it took, I told her I would change the restriction." (Cusack Aff. ¶¶ 41, 45.)

Following her conversations with Cusack, Bailey-Voros relayed the substance of those discussions to Lippner, who concluded that Cusack was being dishonest about her permanent restriction in order to manipulate NAMIS's medical leave policy. (D. Rule 56.1 Stmt. ¶ 42.) Lippner testified at his deposition that "any time I've been presented with an act of dishonesty, my recommendation has always been to terminate the employee." (Lippner Dep. 77:24-75:3.) Lippner thus recommended to NAMIS management that Cusack be fired. At Lippner's request, Bailey-Voros prepared a draft termination letter, which was reviewed by Lippner and forwarded to Weiss for him to sign and send to Cusack. (D. Rule 56.1 Stmt. ¶¶ 46-47.) Weiss signed and mailed the termination letter to Cusack on November 15, 2005. (Id. ¶ 48.) The next day, NAMIS received a revised certification from Cusack's physician's office, which stated that Cusack's leave would need to be extended because she was not ready to return to work and should "continue treatment." (Id. ¶¶ 49-50.)

On August 14, 2006, Cusack filed this action alleging that NAMIS terminated her for discriminatory reasons in violation of the ADA, the FMLA, and the New York City and State Human Rights Laws.


I. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. Id. ...

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