The opinion of the court was delivered by: Cedarbaum, J.
Nancy DeNardi sues DRA Imaging P.C. ("DRA") and Imaging Support Services, LLC ("ISS") pursuant to Section 12112(a) of Title I of the Americans with Disabilities Act ("ADA") and Chapter 18, Article 15 of New York Executive Law Section 296(1)(a) ("New York Human Rights Law") for terminating her because of an erroneous perception that she was disabled. Defendants move for summary judgment dismissing the complaint in its entirety. Because DeNardi provides sufficient evidence to make out a prima facie case of discrimination and to raise a genuine issue of material fact as to whether defendants' reason for her termination is pretextual, defendants' motion for summary judgment is denied.
DeNardi began her employment in September 1999 in the ISS billing department. The parties dispute whether it was only ISS or both defendants DRA and ISS who employed her. DRA, which was organized as a New York professional corporation in 1989, is in the business of rendering professional radiology services. ISS is a New York limited liability company that was formed in July of 1996 and is comprised of two members, DRA and Vassar Brothers Hospital. ISS is in the business of providing management, facilities and equipment to entities engaged in the practice of medicine. According to the operating agreement signed by DRA and Vassar Brothers, ISS is run by an "operating committee" that consists of four members, two appointed by DRA and two appointed by Vassar Brothers.
At the time of ISS's formation in July 1996, ISS and DRA entered into an agreement under which, for specified compensation, ISS would provide management, billing, transcription and equipment leasing services to DRA. Mark Newton was initially hired by ISS as its chief financial officer ("CFO"). Joseph Chiseri was initially hired by ISS to be its chief administrative officer ("CAO"). In 2004, Newton and Chiseri's employment contracts were assigned from ISS to DRA, such that Newton became the CFO of DRA and and Chiseri the CAO of DRA. However, the assignment included the proviso that ISS would continue to receive personal services from Newton and Chiseri consisting of hiring, firing and disciplining ISS personnel and supervising the day to day operations of ISS. DRA and ISS also operate out of the same facility.
Throughout her employment in the ISS billing department, DeNardi received pay checks and W-2 forms from ISS. However, DeNardi's business card and security identification card both read "DRA Imaging, P.C." In addition, DeNardi's health and life insurance were provided under the group name "DRA." Some of the employment forms signed by DeNardi, including an employment application and a confidentiality statement, were entitled "DRA Imaging, P.C./Imaging Support Services, LLC." The name "DRA Imaging, P.C./Imaging Support Services, LLC" was also printed on a new employee benefit checklist that DeNardi completed on her first day of work as well as the Employee Handbook she was given.
During her employment, DeNardi advanced from insurance representative to insurance representative lead to billing department lead and her salary increased from $9.75 to $18.50 per hour. Her annual performance reviews rate all aspects of her work as "very good" or "outstanding." Heather DeNardi, plaintiff's daughter, was hired as a part time insurance agent by ISS in September of 2004.
In October of 2005, DeNardi was diagnosed with colon cancer. She was hospitalized and underwent surgery. As a result, she was absent from work from October through December of 2005. When she returned to work, she was absent for approximately two to four hours on Tuesdays and approximately half an hour to one hour on Thursdays for medical procedures in connection with chemotherapy treatment. She also advised her supervisor, Virginia Barkyani, that there was a small possibility that she would need to undergo further surgery.
DeNardi testified at her deposition that her relationship with Barkyani changed when she returned to work in December of 2005. According to DeNardi, Barkyani stopped spending time with her on breaks, gave her less challenging assignments, excluded her from meetings with her co-workers, and removed work from her desk without her knowledge and returned it with post-it notes giving her instructions on how to perform certain tasks. DeNardi also testified that on one occasion in January of 2006, Barkyani accused her of forgetting to do something and asked her if the "chemo was affecting [her] brain." In addition, she testified that after she returned from her cancer surgery, Mark Newton, who had responsibility for hiring, firing and disciplining employees of ISS, began ignoring her in the hallways of the office.
Sometime in February or early March of 2006, Barkyani assigned DeNardi to the operation of a new computer system, the Cerner Interface, which DRA and ISS had recently installed for billing and appointment scheduling. DeNardi considered the new assignment to be a demotion because she found the work to be less challenging than her prior assignments. Although DeNardi's responsibilities changed at this time, her hourly wage remained the same.
On May 5, 2006, approximately five months after DeNardi returned to work, Heather DeNardi forgot to clock out as she was leaving the office. Upon realizing that she had forgotten to clock out, Heather called her mother, who proceeded to clock her out. The parties dispute whether employees were instructed that they were the only ones who should clock themselves in and out. DeNardi affirms that clocking other employees in and out was an "on-going and well-accepted course of conduct at DRA" and that DRA never instructed its employees to keep their passwords confidential. She also affirms that fellow employees who arrived late to work would often call out for someone to punch them in as they were rushing to get to their desk. DeNardi says she clocked in one of her co-workers in this manner almost every day. On one occasion, even her supervisor, Barkyani, called DeNardi and asked DeNardi to clock her out because she had forgotten to do so. DRA disputes that this was an accepted course of conduct. DRA has produced a "Security and Confidentiality Agreement" signed by DeNardi on April 1, 2003, in which DeNardi explicitly agreed not to "log on to any of the Company's computer systems that currently exist or may exist in the future using a password other than my own."
Later in the day on May 5, 2006, Barkyani spoke to DeNardi about the fact that she had clocked out her daughter. The parties dispute what was said during this conversation. Barkyani testified at her deposition that when she asked DeNardi whether she had clocked out her daughter, DeNardi initially denied doing so but after further discussion, admitted to it. DeNardi, on the other hand, denies that she ever lied. Rather, according to DeNardi's testimony, she readily admitted to clocking out her daughter.
After this conversation took place on May 5, 2006, Barkyani met with Mark Newton and reported what was said. Based on his conversation with Barkyani, Newton made the decision to terminate DeNardi.
On May 8, 2006, Newton and Barkyani met with DeNardi to inform her that she was being terminated. Also on May 8, 2006, Newton sent his superiors an email reporting that he had fired DeNardi and that "[t]he severe consequence of termination was based on the lying even more than the stealing." Barkyani prepared a typed statement for the Human Resources Department dated May 9, 2006, stating that DeNardi was "terminated for falsifying time records for another employee."
DeNardi affirms that she did not lie and that this statement is a pretext for discrimination because of Barkyani's mistaken perception that her cancer treatment disabled her. According to DeNardi, defendants fired her because they regarded her ...