The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action in which Deborah Frumusa ("Plaintiff") alleges that her former employer, Zweigle's, Inc. ("Defendant"), discriminated against her, in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York Human Rights Law, Executive Law § 296 ("NYHRL"). Now before the Court is Defendant's motion for summary judgment (Docket No. [#10]). For the reasons that follow, the application is granted.
Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to Plaintiff. At all relevant times, Defendant was a maker of meat products and operated from a two-story building in Rochester, New York. The building housed Defendant's offices and production facilities. The first floor contained production operations and two offices. Both of the first-floor offices pertained to the production of meat products. One of those offices was occupied by Defendant's Plant Manager, Michael Bidzerkowny ("Bidzerkowny"), who was "responsible for running the production and overseeing the production of the sausages and hot dogs." (Frumusa Deposition at 33). The other first-floor office was occupied by Bernice Green ("Green"), the Cooler Manager, who was responsible for packaging and shipping the meat products. (Frumusa Deposition at 33-35).
All of Defendant's administrative, accounting and sales functions were performed on the building's second floor. Moreover, Defendant's photocopier, fax machine, postage machine, financial records, and safe were located on the second floor.
Access to the second floor of the building was by two ways: stairs or freight elevator. There was no passenger elevator. Computers and telephones on the first and second floors were connected by intra-building networks. Employees were also able to send documents between the first and second floors using a pneumatic tube system.
Plaintiff's job title was Accounts Receivable Clerk. Plaintiff's duties included photocopying and filing invoices, answering telephone calls, processing mail, handling checks, and balancing the accounts receivable ledger. In performing her duties, Plaintiff was required to use the photocopier, fax machine, postage machine, filing cabinets, and safe. Plaintiff was also required to interact with, and occasionally assist, the sales staff, whose offices were located on the second floor. (Frumusa Dep. at 55- 63). Plaintiff also required to make entries in the accounts receivable ledger, which was kept in the company safe, for security and privacy reasons. (Frumusa Dep. at 54-55). The accounts receivable ledger was too large to fit in the pneumatic tube system. Id. at 55.
In 2003, Plaintiff had surgery on her ankle and was out of work for several months, during which time Defendant held her job open for her. (Frumusa Dep. at 84-85). Plaintiff admits that Defendant accommodated her at that time. Id. at 85.
On November 29, 2005, Plaintiff had further surgery on her ankle. After surgery, Plaintiff was unable to work for several months. Plaintiff's doctor, Gregory Finkbeiner, M.D. ("Finkbeiner"), cleared Plaintiff to return to work beginning on May 15, 2006, with the following restrictions: 1) that she be allowed to work four-to-six hours per day; 2) that she be allowed to work on the first floor, since she could not climb stairs; and 3) that she be allowed to elevate her leg and use a brace and cane as needed. Plaintiff's attorney notified Defendant that Plaintiff was prepared to return to work, with the restrictions set by Finkbeiner.
Defendant's controller, Dominic Lippa ("Lippa"), told Plaintiff's attorney that Plaintiff could reduce her hours temporarily, and that she could elevate her leg and use a cane. With regard to Plaintiff's request to work on the first floor, Lippa suggested that Plaintiff could use the building's freight elevator to reach the second floor. In that regard, Plaintiff's President, Roberta Camardo, who used a wheelchair, regularly used the freight elevator to reach the second floor. (Camardo Dep. at 126-135). Moreover, various employees used the freight elevator to avoid using the stairs. (Pl. Counter-Stmt. of Facts ¶ 16(b)). (Frumusa Dep. at 75-80, 146). Additionally, Plaintiff herself had previously used the freight elevator for transportation following surgery in or about 1997. In summary, Defendant was initially willing to provide accommodations that would have allowed Plaintiff to return to work.
However, in response to Lippa's suggestion that Plaintiff use the freight elevator, Plaintiff's attorney raised several concerns. For example, the attorney questioned whether the freight elevator was safe for passengers, and indicated that Plaintiff would need assistance operating the elevator. The attorney also questioned whether Plaintiff would be covered by Worker's Compensation insurance if she was injured while using the elevator.
Subsequently, Defendant's Vice President, Julie Steron ("Steron"), contacted Schindler Elevator Company ("Schindler"), which serviced the freight elevator, and spoke to a Schindler representative, John Duryenka ("Duryenka"). Duryenka told Steron that it would violate "state and federal elevator codes" to allow Plaintiff to use the freight elevator if she was not transporting freight. (Steron Aff. [#11] ¶ 28). Duryenka never mentioned any exceptions to such codes that would permit passenger use of a freight elevator. (Pl. Counter-Stmt. of Facts ¶ 24(c)). It is undisputed that, prior to her conversation with Duryenka, Steron was not aware of any legal restrictions concerning passenger use of the freight elevator. (Def. Stmt. of Facts ¶ 25; Pl. Counter-Stmt. of Facts, ¶ 25).
Steron also "became concerned" that Defendant's worker's compensation insurance might not cover an injury to Plaintiff involving the freight elevator. Id. at ¶ 30. Steron, though, did not contact Defendant's worker's compensation insurance carrier to check on that issue, nor did she seek a legal opinion regarding her concern. Neither, apparently, did Plaintiff's attorney check on those issues. (Frumusa Dep. at 75). In any event, because of the foregoing concerns, Steron decided that Plaintiff could not use the freight elevator for transportation.
Plaintiff also questioned the legality of her using the freight elevator, because she knew that the elevator was "for meat and freight only." (Frumusa Dep. At 71). In that regard, she separately inquired whether it was lawful for her to use the freight elevator, and was told by Ken Asmith ("Asmith"), an employee of National Elevator Inspections, that it would violate state and federal elevator codes for her to use the freight elevator for transportation. (Frumusa Dep. at 69-72). Like Duryenka, Asmith never mentioned any exceptions to such codes that would permit passenger use of a freight elevator. Asmith also told Plaintiff that she would not be covered by insurance if she was injured on the elevator. Id. at 72-73. As a result of her conversation with Asmith, Plaintiff was "very concerned about using the freight elevator." Id. at 73. Specifically, Plaintiff believed that using the elevator would have been illegal and would have left her uninsured in case of an accident:
Q: . . . [Y]ou did not want to use the freight elevator, is that correct?
A: I would have just to come back to work.
Q: But you knew that to do that would require that Zweigle's would violate the law, is that correct?
Q: And you also knew that if you were injured -- at least you believe that you would not be covered if you were injured in the freight elevator, is that correct?
Q: And in fact . . . you must have advised your attorney that you were concerned about whether you should be allowed to use the freight elevator, is that correct?
A: It wasn't just me [who expressed concern], it was somebody else that he works with who [also] advised him.
A: Dennis Phillips, w[ho] worked at the plant before and he said that [the freight elevator] was dangerous.
A: The attorney [Plaintiff's attorney], Dan Bronk.
Q: So then you raised that concern to Mr. Lippa, is that correct?
A: I didn't, my attorney did.
Id. at 73-74. Plaintiff indicates that, apart from using the freight elevator, there was no accommodation that would have allowed her to work on the second floor. (Frumusa Dep. at 151).
Steron also decided that it was not feasible for Plaintiff to work on the first floor for two reasons: First, the only two offices on the first floor were already occupied; and second, Plaintiff's job duties were performed on the second floor. In that regard, Steron states:
All of Zweigle's administrative functions are located on the second floor of Zweigle's facility. This includes all sales, administration and office work. Since these functions are completed on the second floor, the equipment necessary to perform this work is also located on the second floor. This includes, but is not limited to, a copier, fax machine, postage machine, safe, customer files and account ledger.
Based on the unavailability of office space on the first floor, as well as the significant limitations to Plaintiff's ability to perform the essential functions of her position without access to the equipment, information and personnel located on the second floor, Zweigle's believed it was necessary for the Plaintiff to work on the second floor if she was going to return to work. (Camardo-Steron Affidavit [#11] at ¶ ¶ 20-22).
Steron further decided that it was not feasible to move Plaintiff's work equipment to the first floor and have her share one of the first-floor ...