The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
This case lies at the intersection of three schemes governing the defendant's hiring decisions: a union-negotiated collective bargaining agreement, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964.
Plaintiff Eva Kravar, a daytime office cleaner, was two years away from retiring with full benefits when defendant Triangle Services Inc. ("Triangle") terminated her employment. The parties do not dispute that Triangle terminated Ms. Kravar because its client, Bloomberg L.P. ("Bloomberg"), moved from its former offices at 110 East 59th Street to its current headquarters at 731 Lexington Avenue. Nor do the parties dispute that before terminating her, Triangle offered Ms. Kravar a nighttime cleaning position at another office building at her former rate of pay.
The parties disagree, however, about whether Triangle's seniority rules required it to offer Ms. Kravar a daytime cleaning position at 731 Lexington Avenue-a less demanding job similar to the one Ms. Kravar held at 110 East 59th Street. Ms. Kravar contends that her seniority at 110 East 59th Street entitled her to a daytime position at 731 Lexington Avenue. Triangle's refusal to offer her the position, she says, not only violated the company's seniority rules, but constituted unlawful discrimination based on her disability (limitations resulting from abdominal surgery) and national origin (Slovakian). Triangle contends that Ms. Kravar's seniority at 110 East 59th Street did not entitle her to a daytime position at 731 Lexington Avenue. Moreover, it maintains that the employees transferred to 731 Lexington Avenue were selected because they performed more demanding "facilities" work, such as moving furniture and setting up conference rooms.
Triangle has moved for summary judgment. For the reasons that follow, the motion will be denied as to Ms. Kravar's claims for disability discrimination, but granted in all other respects.
Viewed in the light most favorable to Ms. Kravar, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the record shows the following.
Ms. Kravar is a sixty-two year old woman from the Slovak Republic. (Pl.'s Counter-Statement of Undisputed Facts ¶ 1 ("Pl.'s R. 56.1 Stmt.").) For more than twenty-five years, Ms. Kravar worked as a daytime cleaner at 110 East 59th Street, Bloomberg's former headquarters. (Id. ¶¶ 1, 3.) In August 2005, two years before she would have been able to retire with full pension, retirement, and medical benefits, Ms. Kravar's employment was terminated. (Id. ¶¶ 1, 2.)
Triangle is a union contractor, which is subject to a collective bargaining agreement entered into by the Service Employees International Union, Local 32BJ, AFLCIO and The Realty Advisory Board on Labor Relations, Inc. (Ex. 1 to Pl.'s R. 56.1 Stmt. ("32BJ Agreement").) In part, the 32BJ Agreement provides that "In the event of layoff due to reduction of force, the inverse order of department or job classification seniority shall be followed . . . ." (Id. at 71-72.) The agreement additionally provides that subject to exceptions not relevant here, "an employee laid off as a result of reduction in force in a building may bump the employee in the company with the least seniority among employees covered by the respective Building or Route Agreement." (Id. at 72.)
In August 2003, Ms. Kravar was diagnosed with colon cancer. (Pl.'s R. 56.1 Stmt. ¶ 5.) The following month, Ms. Kravar underwent extensive abdominal surgery including a "right hemicolectomy," a procedure in which the right portion of her colon was removed. (Id.) After surgery, Ms. Kravar spent a week in the hospital. (Id. ¶ 6.) She did not return to work for two more months. (Id.)
C. Bloomberg's Move to 731 Lexington Avenue
At the end of February 2005, Triangle told Ms. Kravar that because Bloomberg was moving to new headquarters at 731 Lexington Avenue, she would no longer have a job at 110 East 59th Street. (Id. ¶ 10.) In addition, Triangle told Ms. Kravar that all of the cleaning employees at 731 Lexington would be new hires who, pursuant to the 32BJ Agreement, could be paid less than the more senior employees at 110 East 59th Street. (Id. ¶ 11; see Def.'s R. 56.1 Stmt. ¶¶ 24-26.*fn1 ) Despite this representation, Triangle eventually moved seven employees from 110 East 59th Street to 731 Lexington Avenue.
(Pl.'s R. 56.1 Stmt. ¶ 12.) The parties refer to these employees as "100%" since, unlike the rest of the employees at 731 Lexington Avenue, they received full union wages. (Id.) Of the seven "100%" employees Triangle transferred to 731 Lexington Avenue, six were Hispanic. (Id. ¶ 15.)
The parties dispute how and why Triangle selected the employees that moved to 731 Lexington Avenue. According to Triangle, all but one of the employees performed "facilities" work such as setting up conference rooms and moving heavy furniture. (Def.'s R. 56.1 Stmt. ¶ 16.) Triangle further maintains that (1) Bloomberg specifically selected the employees that moved to 731 Lexington (id. ¶¶ 30, 40), (2) Triangle had nothing to do with their selection (id. ¶ 35), and (3) Triangle had no reason to believe that Bloomberg relied on unlawful criteria (id. ¶ 43). Ms. Kravar concedes that "[a]s Bloomberg moved to its new headquarters, its operations management wanted some 'senior' employees to move over to help make the transition more seamless." (Pl.'s R. 56.1 Stmt. ¶ 20.) But she maintains that (1) nothing distinguished the transferred employees from ordinary cleaners (id. ¶¶ 27-30), (2) a Cuban woman employed by Bloomberg was involved in the selection process, raising an inference of unlawful discrimination (see id. ¶¶ 24-26), and (3) Triangle was involved in a "rating and ranking" process used to determine who would move to the new building (id. ¶ 21).
As noted, Ms. Kravar also contends that in failing to offer her a daytime position at 731 Lexington Avenue, Triangle violated the 32BJ Agreement. (See id. ¶¶ 13-16.) Triangle disputes whether the agreement gave Ms. Kravar any rights vis-à-vis 731 Lexington Avenue. (See Def.'s R. 56.1 Stmt. ¶¶ 65-69.)
D. Ms. Kravar's Termination
Things came to a head in early 2005. By letter dated March 25, 2005, Triangle offered Ms. Kravar a nighttime cleaning position with the company at her former rate of pay. (See Ex. 13 to Pl.'s R. 56.1 Stmt.) While nighttime work is more physically demanding than daytime work (Pl.'s R. 56.1 Stmt. ¶ 32), approximately ninety-five percent of Triangle's cleaning jobs are nighttime positions. (Def.'s R. 56.1 Stmt. ¶ 66; see also id., ¶ 67 (daytime jobs "scarce" and "highly coveted").) In the same letter, Triangle warned Ms. Kravar that if she did not accept a nighttime position, her employment would be terminated. Ms. Kravar responded by sending Triangle a note from her cancer surgeon, which stated that Ms. Kravar had "weakness of her anterior abdominal wall," and that "heavy work" or "heavy lifting" would be "injurious to her health." (Ex. 3 to Pl.'s R. 56.1 Stmt.) On May 2 and May 3, Ms. Kravar attempted to work night shifts at other buildings serviced by Triangle. (Kravar Depo. 66, Ex. 17 to Def.'s R. 56.1 Stmt.) Ms. Kravar testified that while was able to perform light work such as cleaning desks, she could not vacuum or perform heaving lifting. (Id. at 66-67.*fn2
Over the next few months, Triangle assigned Ms. Kravar to work as a standby for regular daytime workers who were out sick or on vacation. (Pl.'s R. 56.1 Stmt. ¶ 40.) Peter Lusha, Triangle's Day Operations Manager, also promised Ms. Kravar that he would look for a daytime position for her. (Id. ¶ 41.) Lusha did not, however, take any steps to locate a daytime position for Ms. Kravar. (Id. ¶¶ 42-43.) After continued disputes over whether Triangle was required to offer Ms. Kravar a daytime position, Triangle terminated Ms. Kravar's employment on August 31, 2005. (See id. ¶¶ 44-45, 49.)
On September 20, 2005, Ms. Kravar filed a discrimination charge against Triangle with the Equal Employment Opportunity Commission. (Id. ¶ 50.) The EEOC sent notice of the charge to Triangle on October 15, 2005. (Id. ¶ 51.) About three weeks later, Triangle removed Ms. Kravar from its payroll and terminated her benefits. (Id. ¶ 52.)
On May 31, 2006, the EEOC issued a determination finding reasonable cause to be believe that Triangle had (1) discriminated against Ms. Kravar based on national origin; (2) failed to provide Ms. Kravar with a reasonable accommodation for her disability; and (3) retaliated against Ms. Kravar by eliminating her benefits after she filed her EEOC charge. (See Ex. A to Amended Compl., at 2.) After the EEOC found probable cause and issued a "right to sue" letter, Ms. Kravar filed suit against Triangle on September 29, 2006. As amended, Ms. Kravar's complaint alleged claims based on the same three theories identified in the EEOC's probable cause determination, i.e., that Triangle discriminated against her on the basis of her national origin, failed to reasonably accommodate her disability, and retaliated against her for filing an EEOC charge. (See Amended Compl. ¶¶ 15, 17, 19, 21.) In addition, the complaint ...