This is a discrimination dispute with claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq, and the New York City Human Rights Law ("NYCHRL"), Admin. Code §§ 8-107(1), (6), against defendants Adecco USA, Inc. ("Adecco"), Savoy Capital, Inc. ("Savoy"), Francisco Lorenzo ("Lorenzo") and Stephen Hazelton ("Hazelton") (collectively "Defendants"). Savoy is a private investment firm and Adecco is a recruiting firm hired by Savoy to help Savoy fill an open position. Before the Court is a motion for partial summary judgment brought by Plaintiff Barbara Katz ("Plaintiff") on Plaintiff's claim for discrimination under the ADA and NYCHRL based on Defendants' inquiries into her disabilities as part of the job application process. Also before the Court are two motions for summary judgment on behalf of Defendants, one brought by Adecco and the other brought by Savoy, Lorenzo and Hazelton (collectively "Savoy Defendants"). For the reasons set forth below, Plaintiff's motion is DENIED, Adecco's motion is DENIED and Savoy's motion is DENIED in part and GRANTED in part.
In March 2010, Plaintiff interviewed twice for the position of executive assistant to Lorenzo, office manager, and office assistant in Savoy's New York City office, once with Hazelton and once with Lorenzo. Pl. 56.1 ¶¶ 13, 16. Hazelton is the managing director of Savoy, id. at ¶ 5, and Lorenzo is the chairman of Savoy. Id. at ¶ 4. Plaintiff then received Savoy's application from Adecco. Id. at ¶¶ 10, 19. A question on the form asked about Plaintiff's medical history. Id. at ¶ 23. Plaintiff informed Phyllis Ehrlich ("Ehrlich"), an Adecco recruiter, that she was a breast cancer survivor and told Ehrlich that the question was improper. Id. at ¶ 25. Ehrlich directed Plaintiff to fill out the form. Id. at ¶ 29. Plaintiff wrote, "There is nothing in my medical history that would interfere with my ability to perform my job responsibilities," id. at ¶ 34, and brought the form to her third interview with Hazelton and Lorenzo. Id. at ¶ 35. Plaintiff received a voicemail from Ehrlich in April indicating that she had not been selected. Id. at ¶ 37.
Summary judgment shall be granted in favor of a movant where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A court must resolve all ambiguities and draw all inferences against the moving party. LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). The movant bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A material fact "might affect the outcome of the suit under the governing law," and an issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal quotation and citation omitted). "The party against whom summary judgment is sought . . . 'must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.' " Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986)).
B. Summary Judgment is Granted on all Federal Claims Against Savoy Defendants
Savoy Defendants move for summary judgment on Plaintiff's ADA claims. Plaintiff concedes that Savoy did not employ enough employees to be bound by the ADA. Pl. Ltr., July 18, 2011.*fn2 Savoy Defendants' summary judgment motion is granted on Plaintiff's ADA claims.*fn3
C. Medical Inquiry Claims
1. Medical Inquiry Provisions of the ADA
Plaintiff argues that Adecco violated the ADA by providing her with Savoy's application form, Pl. 56.1 ¶ 19, which required candidates to "[l]ist all disabilities, procedures or operations." Id. at ¶ 18. The ADA prohibits such pre-offer inquiries: "a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." 42 U.S.C. § 12112(d)(2)(A). Adecco does not contest that this question is a "technical violation" of the ADA, Adecco Opp. 8; however, it offers several arguments in opposition to Plaintiff's motion for summary judgment and in support of its own cross-motion for summary judgment.
a.Adecco is a covered entity
Regardless of whether Adecco was Plaintiff's employer or prospective employer, which it almost certainly was not, Adecco is a "covered entity" under the ADA as an employment agency. 42 U.S.C. § 12111(2); see also EEOC v. Olsten Staffing Servs. Corp., 657 F. Supp. 2d 1029, 1032 (W.D. Wis. 2009) (noting that employers and employment agencies "are both 'covered entities' ") (quoting 42 U.S.C. § 12111(2)). An employment agency is "any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer." 42 U.S.C. §§ 2000e, 12111(7). There is no dispute that Adecco is an employment agency.*fn4 See Adecco Answer ¶ 5; see also Medina v. Adecco, 561 F. Supp. 2d 162, 178 (D.P.R. 2008).
b. There Are Genuine Issues of Material Fact Regarding Whether Adecco Violated the Medical Inquiry Provisions of the ADA
Adecco is prohibited from making disability inquiries. 42 U.S.C. § 12112(d)(2)(A). Adecco argues that it cannot be held liable for a medical inquiry that came from Savoy, Plaintiff's potential employer and Adecco's client. In support of this argument, Adecco argues that (1) "Adecco did not create Savoy's application," (2) "Adecco did not give advice to Savoy regarding its employment application" and (3) "Adecco neither asked for, nor was it ever given the completed Savoy application from Plaintiff." Adecco Opp. 3; Adecco's Counterst. ¶¶ 25-29.
Adecco argues that it should not be held liable for Savoy's medical
inquiry. In Olsten, 657 F. Supp. 2d at 1038, the Court rejected the
employment agency's argument that it could not be held liable for its
discriminatory conduct because it was the result of customer
preference. Id. The Court explained that this "view would allow
employment agencies to avoid liability no matter how many
discriminatory actions they took so long as the 'final decision' on
placement could be attributed to the client." Id. As in Olsten,
Plaintiff seeks to hold Adecco liable for "facilitat[ing]
discrimination through its own acts and omissions."*fn5
Id.; see also Enforcement Guidance: Application of EEO Laws
to Contingent Workers, 1997 WL 33159161, at *9 (Dec. 3, 1997) ("[T]he
staffing firm is liable if it administers on behalf of its client a
test or other selection requirement that has an adverse impact on a
protected class and is not job-related for the position in question
and consistent with business necessity.").
There are genuine issues of material fact regarding whether Ehrlich's actions on behalf of Adecco amounted to a discriminatory inquiry. Although Savoy created the application, Adecco delivered it to Plaintiff and Ehrlich repeatedly directed Plaintiff to complete the application over her protests that it was possibly unlawful and certainly improper; there are no major factual disputes that this is what transpired. Put another way, did Adecco make a discriminatory inquiry simply by giving Savoy's application to Plaintiff and directing her to fill it out even after Plaintiff objected.
c. Plaintiff Need Not Demonstrate An Adverse Employment Action
Next, Adecco argues that Plaintiff has established a mere technical violation of the ADA because she cannot demonstrate any adverse employment action. Adecco Opp. 8.
In Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 96 (2d Cir. 2003), the Second Circuit considered the nearly identical language of the ADA's post-employment prohibition on employer disability inquiries. See 42 U.S.C. § 12112(d)(4)(A) (prohibiting "inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity"). There, the Second Circuit rejected a similar argument made by the defendant that the plaintiff had suffered "no injury" and so "lack[ed] standing." Conroy, 333 F. 3d at 93-94. The Court quoted a sister circuit, explaining "[i]t makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability." Id. at 95 (quoting Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir.1997)).*fn6 Plaintiff need not provide evidence of any adverse employment action as a result of the inquiry on the application form.*fn7
While Adecco argues that here we have a pre-employment fact pattern and that makes all the ...