The opinion of the court was delivered by: Kenneth M. Karas, District Judge
On April 20, 2005, Plaintiff Vanessa Pugliese filed this employment discrimination action against Defendant Verizon New York ("Verizon").*fn1 The Complaint alleges that Defendant discriminated against Plaintiff on the basis of her mental illness, and unlawfully retaliated against her, in violation of the Americans with Disabilities Act of 1990 ("ADA") and the New York State Human Rights Law ("NYSHRL").*fn2 Defendant has filed a Motion for Summary Judgment and a Motion to Strike material in Plaintiff's affidavits responding to the Motion for Summary Judgment. For the reasons stated below, Defendant's Motion to Strike is GRANTED in part and DENIED in part, and Defendant's Motion for Summary Judgment is DENIED.
Plaintiff Vanessa Pugliese was 31 years old when this case was commenced. (Pl.'s Dep. 15; Def.'s Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1") ¶ 1; Pl.'s Opp. to Def.'s Rule 56 Mot. to Dismiss ("Pl.'s 56.1 Response") ¶ 1.) Plaintiff was hired as a field technician by NYNEX in August 1997. (Def.'s 56.1 ¶ 3; Pl.'s 56.1 Response ¶ 3.) Plaintiff subsequently performed the same job for Verizon, NYNEX's successor. (Def.'s 56.1 ¶¶ 2-3; Pl.'s 56.1 Response ¶¶ 2-3.)
Shortly after hire, Plaintiff commenced a six-month training course in the functions of a field technician. (Def.'s 56.1 ¶ 6; Pl.'s 56.1 Response ¶ 6.) These functions included the following tasks: repairing wiring and associated items of equipment at customer premises; working indoors and outdoors; climbing ladders and poles; working aloft for long periods of time using tools and test equipment; interacting with customers to ensure customer satisfaction; checking work to ensure compliance with customer needs; and completion of a signed daily time record. (Def.'s 56.1 ¶ 5; Pl.'s 56.1 Response ¶ 5.) Plaintiff understood that these tasks were essential to the proper performance of her job. (Def.'s 56.1 ¶ 6; Pl.'s 56.1 Response ¶ 6.)
Plaintiff officially began work as a field technician in October 1997. (Def.'s 56.1 ¶ 8; Pl.'s 56.1 Response ¶ 8.) Throughout her tenure, Plaintiff normally worked a shift from 7:30 a.m. to 4:30 p.m. (Def.'s 56.1 ¶ 9; Pl.'s 56.1 Response ¶ 9.) She usually was based out of Verizon's facility located in Elmsford, New York; it was there that she reported each morning, picked up her truck, and received her work assignments for the day. (Def.'s 56.1 ¶¶ 8, 12; Pl.'s 56.1 Response ¶¶ 8, 12.)
Each day, Plaintiff typically received three work assignments, which she understood were intended to take her entire shift to complete. (Def.'s 56.1 ¶ 13; Pl.'s 56.1 Response ¶ 13.) Plaintiff, however, tended to hurry through her assignments and would often complete them by noon. (Def.'s 56.1 ¶ 14; Pl.'s 56.1 Response ¶ 14.) Plaintiff knew that if she completed her morning assignments before the end of the day, she was obligated to call the dispatch unit to obtain additional assignments. (Def.'s 56.1 ¶ 16; Pl.'s 56.1 Response ¶ 16.) On numerous occasions, however, Plaintiff did not comply with these requirements. (Def.'s 56.1 ¶ 11; Pl.'s 56.1 Response ¶ 11; Pl.'s Dep. 43-45.) Rather than calling in for extra assignments, Plaintiff would go to an empty garage and "hang out" until the end of her shift, linger in her truck, or go home and do her laundry. (Def.'s 56.1 ¶¶ 11, 16, 18, 26, 30, 32, 34, 35, 36, 38; Pl.'s 56.1 Response ¶¶ 11, 16, 18, 26, 30, 32, 34, 35, 36, 38.) On these occasions, Plaintiff would inaccurately fill out her daily time sheet so as to disguise her true activities. (Def.'s 56.1 ¶¶ 39-40; Pl.'s 56.1 Response ¶¶ 39-40.) Such behavior violated the Verizon Code of Business Conduct. (Def.'s 56.1 ¶¶ 20-22, 41; Pl.'s 56.1 Response ¶¶ 20-22, 41.)*fn3
In early March 2003, Plaintiff told her supervisor, Lou Delbene, that she did not "feel safe" performing her job on her own and that she needed a companion. (Def.'s 56.1 ¶ 42; Pl.'s 56.1 Response ¶ 42.) Starting on approximately March 4, 2003, Delbene agreed to let Plaintiff work with another Verizon field technician. (Def.'s 56.1 ¶ 43; Pl.'s 56.1 Response ¶ 43.) Later that month, Clarence Williams became Plaintiff's supervisor, and he too "did what he could" to provide Plaintiff with a companion. (Def.'s 56.1 ¶ 47; Pl.'s 56.1 Response ¶ 47; Pl.'s Dep. 83.) Defendant characterizes this accommodation as a temporary measure. According to Defendant, all field technicians in Westchester and Rockland County work alone, except on special occasions that require multiple workers, or if the worker needs temporary assistance for medical needs unrelated to the job task. (Def.'s 56.1 ¶ 7.) Defendant had, in the past, given temporary accommodations similar to those given to Plaintiff to other individuals with short-term physical or mental impairments. (Def.'s 56.1 ¶ 44.) According to Defendant, Delbene told Plaintiff that her accommodation was a temporary allowance and that she would be required to work alone in the future. (Def.'s 56.1 ¶ 43.) Plaintiff concedes that she was never told she held the position of "escort" -- an employee who accompanies a field technician on his or her daily rounds -- and acknowledged that she was not aware of any employee in Westchester who held such a position. (Def.'s 56.1 ¶ 45; Pl.'s 56.1 Response ¶ 45.) According to Defendant, Verizon employs permanent escorts only in certain portions of New York City, and not in any of the counties north of New York City. (Def.'s 56.1 ¶ 58; Def.'s Ex. 19.)*fn4
On March 25, 2003, after approximately three weeks of working with a companion, Williams told Plaintiff that she could no longer ride with another person unless her job required the assistance. (Def.'s 56.1 ¶ 48; Pl.'s 56.1 Response ¶ 48.) Following her conversation with Williams, Plaintiff was absent from work from March 26, 2003, to March 31, 2003. (Def.'s 56.1 ¶ 49; Pl.'s 56.1 Response ¶ 49.)
On or about March 31, 2003, Plaintiff returned to work and presented Williams with a note from Dr. Carol Paras. (Def.'s 56.1 ¶ 50; Pl.'s 56.1 Response ¶ 50.) The note stated that because of Plaintiff's "post-traumatic stress disorder (delayed)," she "can no longer work outside, alone" and will "have to be moved inside as soon as possible." (Def.'s 56.1 ¶ 50; Pl.'s 56.1 Response ¶ 50.) Dr. Paras also suggested that, as an alternative to going on full-time disability, Defendant could try sending Plaintiff out to work with a companion. (Def.'s 56.1 ¶ 50; Pl.'s 56.1 Response ¶ 50.)*fn5 According to Plaintiff, however, such an accommodation could not be a permanent solution -- a long-term solution would require Plaintiff to be moved indoors. (Def.'s 56.1 ¶ 60; Pl.'s 56.1 Response ¶ 60.)
Once presented with Dr. Paras's note, Williams determined that Plaintiff could no longer perform the essential tasks of a field technician and sent Plaintiff home. (Def.'s 56.1 ¶ 52; Pl.'s 56.1 Response ¶ 52.) According to Plaintiff, she was sent home without pay. (Pl.'s Dep. 159, 166.) Plaintiff alleges in her Complaint and Affidavit -- but not her deposition -- that she told Williams during this conversation that his conduct was discriminatory. (Compl. ¶ 12; Pl.'s Aff. ¶ 5.) Plaintiff considered herself terminated and subsequently applied for unemployment benefits.*fn6
On April 2, 2003, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Shortly thereafter, Williams apparently learned that Plaintiff had filed the EEOC charge. (Pl.'s Rule 56.1 Statement of Material Facts ("Pl.'s 56.1") ¶ 16; Def.'s Rule 56.1 Counter-Statement to Pl.'s Material Facts ("Def.'s 56.1 Response") ¶ 16.)*fn7
Defendant has an established policy and procedure for attempting to accommodate employees with disabilities. (Def.'s 56.1 ¶ 54; Pl.'s 56.1 Response ¶ 54.) According to Defendant, the first step in this process is a referral to its disability administrator, Metropolitan Life Insurance Company ("MetLife"). (Def.'s 56.1 ¶ 55.) On March 8, 2003, MetLife approved Plaintiff for short-term disability benefits beginning on April 2, 2003, making her eligible for thirteen weeks of full pay and thirty-nine weeks of half-pay. (Def.'s 56.1 ¶ 57; Pl.'s 56.1 Response ¶ 57; Def.'s Ex. 16.) During the time that Plaintiff received short-term disability benefits, Plaintiff remained on Defendant's payroll and continued to receive pay stubs. (Def.'s 56.1 ¶ 57; Pl.'s 56.1 Response ¶ 57.)
In September 2003, roughly six months after being sent home by Williams, Defendant offered to accommodate Plaintiff by allowing her to transfer to an escort position in the Bronx. (Def.'s 56.1 ¶ 58; Pl.'s 56.1 Response ¶ 58.) Although the Parties disagree over whether Defendant properly followed-up on Plaintiff's counsel's inquiries regarding this offer (Def.'s 56.1 ¶ 58; Pl.'s 56.1 Response ¶ 58; Allyn Aff. ¶¶ 5-7), such disagreement is largely irrelevant: Plaintiff testified that she rejected this offer because she considered it to be too dangerous, not because of any miscommunication between Defendant and Plaintiff's counsel. (Pl.'s 56.1 Response ¶ 59; Pl.'s Dep. 96-98.) Regardless, Plaintiff admitted in her deposition that she would not have accepted an escort position -- even in Westchester County -- as an adequate permanent solution to her disability, and that the best case scenario would be for her to be placed in a position permitting indoor work. (Def.'s 56.1 ¶ 60; Pl.'s 56.1 Response ¶ 60.) Her medical needs, as described by Dr. Paras, made clear that Plaintiff needed an indoor job, and that an escort-type position could only serve as a temporary accommodation. (Def.'s 56.1 ¶ 60; Pl.'s 56.1 Response ¶ 60.)
According to Defendant, after Plaintiff rejected the escort position in the Bronx, Plaintiff was placed in Verizon's Health Impairment Evaluation Process ("HIC Process"). (Def.'s 56.1 ¶ 67.) The HIC process is meant to "outline the courses of action for the placement or accommodation" of "employees who develop long-term or permanent impairments which prevent them from performing the essential duties of their job." (Pl.'s Ex. 14 at § 2.1 (HIC Process).) The course of action dictated by the policy is as follows. Initially, the department explores possible reasonable accommodations. (Id. at § 2.2.) If a reasonable accommodation cannot be made, the department looks into whether the employee can be moved laterally to an appropriate position. (Id.) If no lateral vacancies are available in the geographic unit of the employee's area for which the employee is qualified and medically approved, a move to a lower position will be considered. (Id.) If no job match is made within a three-month search, the case is submitted for review by the Health Impairment Committee. (Id. at § 4.3.) According to Defendant, during this three-month period, Plaintiff is encouraged to review the weekly published list of internal vacancies ("Specific Published Vacancies" or "SPVs") for suitable positions. (Def.'s 56.1 ¶¶ 63, 65, 67-68.) If, following the three-month period, the Committee determines that all steps of the HIC process have been followed and all placement efforts have been thoroughly documented, but no suitable job was found for the employee, the Committee will refer the employee to receive appropriate disability benefits. (Pl's Ex. 14 at §§ 5.21 -5.31(c).) After fifty-two weeks of disability benefits, the employee is then removed from the active payroll and granted any benefits to which he/she is entitled, such as long-term disability. (Id. at § 5.31(d).)
Between March 31, 2003, the date that Plaintiff was "sent home," and April 7, 2004, the date Plaintiff was approved for long-term disability, Defendant identified two possible accommodations for Plaintiff. The first position was the aforementioned escort position in the Bronx, which Plaintiff rejected as too dangerous and insufficiently temporary. The second position, information about which was conveyed to Plaintiff by Eric Olsen, a manager at Verizon, was an indoor administrative assistant position in Valhalla, New York. (Def.'s 56.1 ¶ 70; Pl.'s 56.1 Response ¶ 70.) This offer was subsequently withdrawn, however, for reasons unrelated to Plaintiff. (Def.'s 56.1 ¶ 71; Pl.'s 56.1 Response ¶ 71.) The administrative assistant position was the only position Plaintiff applied for -- no other positions were identified by Defendant, and Plaintiff did not recall finding any positions that met her requirements during the three-month search period. (Def.'s 56.1 ¶¶ 72, 74-75; Pl.'s 56.1 Response ¶¶ 72, 74-75.) In addition, Plaintiff did not take advantage of the vocational rehabilitation services offered by Defendant, imagining that they would be "humiliating." (Pl.'s Dep. 232.)
After fifty-two weeks on short-term disability, Plaintiff applied for long-term disability and was accepted effective April 7, 2004. (Def.'s 56.1 ¶ 76; Pl.'s 56.1 Response ¶ 76.) Accordingly, Plaintiff was removed from Verizon's payrolls and ceased being a Verizon employee. (Def.'s 56.1 ¶ 77; Pl.'s 56.1 Response ¶ 77.)
On June 28, 2006, MetLife discontinued Plaintiff's long-term disability benefits after MetLife determined that Plaintiff was substantively employed and had the capability to remain employed. (Def.'s 56.1 ¶¶ 78, 82-84; Pl.'s 56.1 Response ¶¶ 78, 82-84.) This decision was based in part on representations by Dr. Paras that Plaintiff's post-traumatic stress disorder was in remission and that Plaintiff was "no longer disabled." (Def.'s 56.1 ¶¶ 79, 81; Pl.'s 56.1 Response ¶¶ 79, 81.)
A. Motion to Strike Evidence
Because "a decision on the motion to strike may affect [the movant's] ability to prevail on summary judgment," it is appropriate to consider a motion to strike prior to a motion for summary judgment. Gucci Am., Inc. v. Ashley Reed Trading, Inc., No. 00-CV-6041, 2003 WL 22327162, at *2 (S.D.N.Y. Oct. 10, 2003); see also Century Pacific, Inc., v. Hilton Hotels, Corp., 528 F. Supp. 2d 206, 213-14 (S.D.N.Y. 2007). Federal Rule of Civil Procedure 56(e) requires that, in a summary judgment motion, "a supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Therefore, "[a] court may 'strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements.'" Rockport Co. v. Deer Stags, Inc., 65 F. Supp. 2d 189, 191 (S.D.N.Y. 1999) (quoting Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999)); see also Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (holding that inadmissible statements in affidavits submitted in support of summary judgment motion are incapable of raising material issues of fact). Defendant has moved to strike portions of several affidavits and exhibits submitted with Plaintiff's response Defendant's motion. The Court will consider each in turn.
a. Affidavit of Vanessa Pugliese
i. Paragraph Eight and Exhibit N
Paragraph Eight of Plaintiff's Affidavit states: "Exhibit N, attached to my opposition papers[,] is a true and accurate account of other employees working two[-]man shifts in Westchester. In fact, the Ferris Ave. locations, the Fisher Ave. locations, the DeKalb Ave. locations, the Lexington Ave. locations, are dangerous area[s] in Westchester which typically require a two[-]man crew." (Pl.'s Aff. ¶ 8.) Defendant argues that Paragraph Eight and Exhibit N should be stricken as inadmissible opinion and hearsay because they are based on information of which Plaintiff does not have personal knowledge.
Exhibit N is a log compiled by Plaintiff listing occasions when multiple technicians allegedly were dispatched to a given work site. The log features six data categories for each entry: the name of first technician, the name of second technician, the employee code, the address of the repair site, the order/ticket number, and the date the work was done. The log has numerous potential problems. First, the log is substantially incomplete: many entries lack information -- such as dates, addresses, or names of the second technician and the length of time the two technicians worked together -- and the information that is included is often incomplete. Second, and more importantly, Plaintiff's deposition casts doubt on the source of the information included in the log. Only one of the entries pre-dates her termination from Verizon; thus, Plaintiff clearly gathered this information second-hand. To the extent Plaintiff identifies the source of this information, Plaintiff acknowledges that at least some of the data was provided by Anthony Pugliese, her ex-husband. (Pl.'s Dep. at 111-12.)
Federal Rule of Civil Procedure 56(e) requires a summary judgment affidavit to be made on personal knowledge. Because the Court cannot determine what portions, if any, of Exhibit N are based on personal knowledge, and what portions are the result of second-hand information, Exhibit N is not admissible and will not be considered by the Court. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) ("Because there is no way to ascertain which portions of [counsel's] affidavit were based on personal knowledge, as opposed to information and belief, the affidavit is insufficient under Rule 56 to support the motion for summary judgment."). Accordingly, Exhibit N and Paragraph Eight of Plaintiff's Affidavit are stricken.
Paragraph Five of the Plaintiff's Affidavit states: "On March 31, 2003, I advised my supervisor Mr. Williams that I need an accommodation, that  defendant was not providing me with a reasonable accommodation, and that such conduct was discriminatory." (Pl.'s Aff. ¶ 5.) Defendant argues that Paragraph Five should be stricken because it raises new allegations and contradicts previous deposition testimony given by Plaintiff. See Perkins v. Mem'l Sloane-Kettering Cancer Ctr., No. 02-CV-6493, 2005 WL 2453078, at *15 (S.D.N.Y. Sept. 30, 2005)("The Second Circuit has repeatedly stated that 'a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.'" (quoting Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995)).
Paragraph Five largely reiterates the allegations in the Complaint. Plaintiff's Complaint states that "[o]n or about March 31, 2003, and after requesting a reasonable accommodation because of her disability, and complaining of discriminatory treatment, Plaintiff was sent home." (Compl. ¶ 12.) The Complaint further adds that Plaintiff's termination was "an act of retaliation for Plaintiff's requesting a reasonable accommodation in her employment because of her disability, and/or because of her complaints of discriminatory treatment." (Id. ¶ 13.) Paragraph Five is thus consistent with Paragraphs Twelve and Thirteen of the Complaint.
Because Paragraph Five does not raise any new allegations, the Court declines to strike it from Plaintiff's Affidavit. However, the Court observes that Paragraph Five is substantially at odds with the portion of Plaintiff's deposition testimony in which she specifically stated her belief that her retaliatory discharge was exclusively motivated by the filing of her EEOC complaint. (Pl.'s Dep. 269-72.) Although the Court will not strike Paragraph Five, "factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not 'genuine' issues for trial." Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); see also United Magazine Co. v. Murdoch Magazines Distribution, Inc., 393 F. Supp. 2d 199, 211 (S.D.N.Y. 2005) ("[A] self-serving affidavit that merely reiterates conclusory allegations in affidavit form is insufficient to preclude summary judgment . . . .").
b. Affidavit of Glenn Allyn
i. Paragraphs Three through Seven
Paragraphs Three through Seven concern communications between Plaintiff's attorney Glenn Allyn and Defendant regarding Defendant's offer of employment in the Bronx. The Court declines to strike these paragraphs. According to the Affidavit, Allyn has personal knowledge of the events in question. Although these allegations may turn out to be immaterial -- it is unclear from Plaintiff's deposition how much she knew about Allyn's communications with Defendant -- the Court need not strike this material before its full relevance is brought to light. Moreover, while Allyn's testimony may differ from Plaintiff's ...