The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:
I. PRELIM INARY STATEM ENT
Plaintiff Mary Kay Scalera ("Scalera") brings this disability discrimination action against Defendants Electrograph Systems, Inc. ("Electrograph"), Kathy Koziol ("Koziol"), Rose Ann Gordon ("Gordon"), and Alan Smith ("Smith") (collectively, "Defendants") for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290, et seq. Scalera specifically alleges that Defendants failed to reasonably accommodate her disability when they failed to install (1) a higher toilet seat in the women's restroom; and (2) a hand rail at the side entrance of Electrograph's Hauppauge office building.
Defendants now move for summary judgment on four separate grounds. For the foregoing reasons, Defendants' motion for summary judgment is DENIED.
The following facts are drawn from the parties' Rule 56.1 Statements and are construed in the light most favorable to the non-moving party. See Capobianco v. New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005). Unless otherwise noted, the following facts are not in dispute.
Defendant Electrograph was a New York Corporation which employed approximately 200 employees nationwide. Defs.' 56.1 Stmt. ¶¶ 3-4. However, Electrograph liquidated its assets and no longer functions as a viable enterprise. Id. ¶ 6. During all relevant time periods, Defendant Smith was the CEO of Electrograph, Defendant Gordon was the Director of Human Resources, and Defendant Koziol was the Director of Operations. Id. ¶¶ 7-8, 12. The Planitiff was employed by Electrograph as a Systems Programmer Analyst at its Hauppauge office from September 16, 2005, until October 11, 2006. Id. ¶¶ 1-2. Scalera suffers from a genetic disorder called Pompe Disease which severely impairs her ability to walk.*fn1 Id. ¶¶ 16-17. While employed at Electrograph, Plaintiff used a cane to assist with her walking. Id. ¶ 17. There is no dispute that management and other employees of Electrograph were aware of Plaintiff's limited mobility. Id. ¶ 19.
B. Accommodations for Scalera
When Plaintiff was offered the job as a software programmer, she was provided with the opportunity to purchase a chair of her choice. This chair was delivered to Plaintiff's desk prior to her first day of employment. Id. ¶¶ 20-21. Scalera was also permitted to enter and exit though the side entrance of the building since that path minimized the distance she had to walk between her car and cubicle. Id. ¶¶ 22, 27. Plaintiff utilized the side entrance every day she was employed by Electrograph. Id. ¶ 23. Although management advised all employees sometime in October 2005 that they were not permitted to enter or exit the building through the side entrance, Plaintiff requested and received permission from her supervisor, Joe Koos, to continue using it. Id. ¶ 24. Although not asked personally by Scalera, Defendant Gordon as HR Director learned of Plaintiff's request to use the side entrance and approved it as a reasonable accommodation.
Id. ¶ 26. Scalera frequently received manual assistance from Electrograph employees, including entering and exiting the building. Id. ¶¶ 36-37.
Scalera also utilized the parking spot closest to the side entrance of the building. Id. ¶ 28. Defendants claim that Plaintiff requested, and was granted, as a reasonable accommodation, the right to use this particular parking spot. Id. ¶ 29. Plaintiff denies this assertion, however, and states that she neither requested the right to use this particular spot nor spoke to anyone at Electrograph about it. Pl.'s 56.1 Stmt. ¶ 28.
Sometime in December 2005, Defendant Koziol had a conversation with Plaintiff and offered to relocate Plaintiff's cubicle to one that was closer to the ladies room.*fn2 Defs.' 56.1 Stmt. ¶ 31. This offer was declined by Scalera. Id. Koziol also offered Plaintiff the use of the "executive bathroom" since it was closer to Plaintiff's cubicle. Id. ¶ 32. Koziol initiated a conversation with Gordon and sent an e-mail to Smith in order to secure permission for Plaintiff to use the executive bathroom. Id. ¶ 34. Smith agreed to the request. Id. ¶ 35. While Scalera admits that Koziol offered her the opportunity to use the "executive bathroom," Plaintiff maintains that she specifically told Koziol that this bathroom would not be an accommodation.*fn3
Pl.'s 56.1 Stmt. ¶¶ 32-33.
C. Requested Accommodations
During her employment, Plaintiff claims that she requested two accommodations from Defendants: (1) a higher toilet seat in the women's room; and (2) a hand rail for the side entrance of the Electrograph building. Pl.'s 56.1 Stmt. ¶ 39. Plaintiff contends that on two separate occasions in or around December 2005, she made in-person requests to Koziol for a higher toilet seat. Id. ¶¶ 39-40. Koziol denies that Plaintiff ever asked her for higher seating in the bathroom. Defs.' 56.1 Stmt. ¶ 33. Other than Koziol, Plaintiff does not allege that she discussed the height of the toilet seats with anyone else at Electrograph. Pl.'s 56.1 Stmt. ¶ 41. Scalera also claims that she requested that a hand rail be installed by the steps at the side entrance sometime in November 2005. Id. ¶ 43. According to Plaintiff, in addition to in-person requests for the installation of a railing, she also e-mailed and called Defendant Gordon about the requested accommodation. Id. Defendant Gordon denies ever being asked about the railing. Defs.' 56.1 Stmt. ¶ 45.
On July 13, 2006, while exiting the building through the side entrance, Plaintiff fell. Defs.' 56.1 Stmt. ¶ 46. Subsequent to the fall, Plaintiff requested and was granted non-FMLA leave for 12 weeks. Id. ¶ 48. At the end of the 12 weeks, and in accordance with company policy, Electrograph terminated Plaintiff's employment. Id. ¶ 49. On account of her injuries, Plaintiff has been awarded Workers' Compensation. Id. ¶ 50. Plaintiff also receives disability payments from Social Security and long-term disability payments from two insurance companies. Id. ¶¶ 51-52.
Rule 56(a) of the Federal Rules of Civil Procedure dictates that a "court shall grant summary judgment if the movant shows that 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). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). To determine whether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising from that evidence in the light most favorable to the non-moving party. Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir. 2007); Woodman, 411 F.3d at 75.
Where the movant shows a prima facie entitlement to summary judgment, "the burden shifts to the non-movant to point to record evidence creating a genuine issue of material fact." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). "[T]he non-movant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment." Id.; see also McPherson v. N.Y.C Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) ("Even where facts are disputed, in order to defeat summary judgment, the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor."). Summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Dobbs v. Dobbs, No. 06-CV-6104, 2008 WL 3843528, at *1 (S.D.N.Y. Aug. 14, 2008) ("The Court's goal should be to isolate and dispose of factually unsupported claims.") (internal quotation marks omitted). However, if "there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir. 1997) (quoting Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997)).
In this case, Scalera alleges that the Defendants failed to make reasonable accommodations for her disability when they failed to provide higher seating for a toilet in the women's restroom and failed to install a hand rail at the side entrance. For purposes of this motion, Defendants make the following concessions: (1) Plaintiff is disabled under the ADA; (2) Electrograph was Plaintiff's employer under the ADA and NYHRL since it employed more than 15 people; (3) Electrograph recognized Plaintiff's disability, which it understood to be difficulty with walking; and (4) installing raised seating in the bathroom or a hand rail would not have posed an undue financial hardship on Electrograph.
Notwithstanding these concessions, Defendants contend that ADA liability is inappropriate because: (1) Plaintiff has not met her prima facie burden since she has provided no evidence that Defendants' alleged failures to accommodate were motivated by Plaintiff's disability;*fn4 (2) Defendants met their burden to accommodate the Plaintiff by engaging in the interactive process called for under the statute and providing Plaintiff with five other reasonable accommodations that were necessary for her to perform her job;*fn5 (3) there is no individual liability under the NYHRL for Defendants Smith, Gordon or Koziol; and (4) Plaintiff, who has already been compensated under Workers' Compensation for her injury, is abusing the judicial process in order to circumvent the exclusive remedy of Workers' Compensation since her claim is actually a tort action disguised as an ADA claim. Each of these arguments is addressed below.
Under the ADA, "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).*fn6 In addition to other forms of discrimination -- such as disparate treatment and disparate impact -- the term "discriminate" also includes: not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.
Id. § 12112(b)(5)(A). In reasonable accommodation cases, such as the present action, "the plaintiff's burden 'requires a showing that (1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with [or without] reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.'" Graves, 457 F.3d at 184 (quoting Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004)); accord Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1515 (2d Cir. 1995). While Defendants are correct that the reasonable accommodation standard is not one of strict liability, once Plaintiff puts forth a prima facie case, the burden shifts to the employer to demonstrate that the employee's proposed accommodation would result in an undue hardship. See Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997); E.E.O.C. v. Yellow Freight Sys. Inc., No. 98 CIV. 2270, 2002 WL 31011859, at *11 (S.D.N.Y. Sept. 9, 2002); see also DiCarlo v. Potter, 358 F.3d 408, 419 (6th Cir. 2004).
Based on the parties' submissions, there appears to be some confusion as to what is necessary to establish a prima facie disability discrimination claim where the claim is based strictly on a failure to accommodate. Defendants claim that Scalera must also demonstrate -- as an integral part of her prima facie case -- that her disability was a motivating factor in the employer's decision not to provide a reasonable accommodation. To require Scalera to satisfy this additional element given the circumstances of this case, however, would be a misapplication of the law.
In support of this additional element, Defendants rely heavily on the Second Circuit's decision in Parker v. Sony Pictures Entm't, Inc., 260 F.3d 100 (2d Cir. 2001).*fn7 In Parker, the plaintiff suffered a workplace injury that led him to take an extended medical leave. 260 F.3d at 104. After plaintiff's guaranteed leave expired, he was terminated. Id. The plaintiffin Parker alleged that he was fired because his employer failed to provide the reasonable accommodation he needed to return to work, which was a modified work schedule. Id. Appealing a jury verdict for the defense which found that plaintiff's disability was not a motivating factor in his discharge, the plaintiff argued ...