The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Wayne R. Piccolo brings this employment discrimination action pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 ("ADA") and New York State Human Rights Law, N.Y. Exec. Law §§ 290-297 ("NYSHRL"). Plaintiff's claims arise out of his employment at Wal-Mart, and Defendant's alleged failure to accommodate his back and leg pain, and its decision to terminate his employment. Presently before this Court is Defendant's motion to dismiss. For the following reasons, Defendant's motion is granted.
For purposes of Defendant's motion to dismiss, this Court assumes the truth of the following factual allegations. See Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008); Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
Plaintiff began working for Wal-Mart on October 10, 2007 as a temporary seasonal full-time associate / cashier in the electronics department. (Pl.'s Nov. 11, 2010 Letter (Nov. Letter) attached to Compl., p. 1, Docket No. 1.) On December 28, 2007, Plaintiff was laid off, but informed that he was eligible for rehire. (Id.) Plaintiff reapplied to Wal-Mart, and was hired as a full-time cashier on January 10, 2008. (Id.)
While working at Wal-Mart, Plaintiff began experiencing lower back pain, and what he describes as hernia symptoms. These, he believed, came about as a result of lifting and carrying heavy at work. His condition became increasingly severe and, in August of 2008, Plaintiff spoke with store manager Sean Robb about a possible workers' compensation claim. (Id.) Robb and Plaintiff agreed that he would not file such a claim, but would instead request a leave of absence. (Id. at 2.) After Plaintiff's physician filled out the requisite forms, the leave of absence was approved. Plaintiff then had a hernia surgery in March of 2008.*fn1 He attempted to return to work on September 10, 2008 with a doctor's note clearing him for work, subject to a lifting restriction. (Pl.'s Prelim. Stmt. 2.) Wal-Mart would not permit him to return to work with such a restriction, but approved him for a six-month leave of absence. (Id.)
Plaintiff then returned to work. At some point thereafter he spoke with assistant co-manager Cherry Hodge about being allowed to sit or lean back on a stool while he worked to alleviate lower back and leg pain he was experiencing while standing during his shift as a cashier. (Nov. Letter, p. 2.) He also inquired about the possibility of a transfer. (Id.) Hodge informed Plaintiff that Wal-Mart did not permit seating accommodations for cashiers and that no other positions were available. (Id.)
Plaintiff then requested a second leave of absence from July 7, 2009 to January 7, 2010. (Id. at 3; Pl.'s Summary of Facts ("Pl.'s Summary") 1, Docket No.19.) This request was granted, but did not help improve Plaintiff's condition. (Nov. Letter, p. 3.) Plaintiff was only able to return to work with a standing and lifting restriction, which Plaintiff had been informed was unavailable. Consequently, he requested a 6-month extension of his leave of absence. This was granted, but Plaintiff was warned that if he did not return to work by July 7, 2010, his employment would be terminated for having been on leave for one year. (Id.)
During his extended leave of absence, Plaintiff's condition improved, and he felt ready to return to work. Wal-Mart informed him that he would need to see his physician before returning to work. Plaintiff received a note from his doctor, dated June 19, 2010, which he provided Defendant, stating that he was ready to resume work without restriction. (Id.)
Plaintiff returned to work on July 6, 2010 as a part-time cashier, the only available open position. (Id.) Plaintiff's condition continued to improve over the next two weeks. (Id. at 4.) He then asked to be reinstated to full-time status. He also recorded his work availability as from 7:00 a.m. to 12:00 a.m., to maximize the number of hours Wal-Mart assigned him. (Id.)
Either at the end of July or the beginning of August, Plaintiff began to relapse. (Id. at 4-5; Pl.'s Summary 2.) According to Plaintiff, this was because he "was doing the same work that [he] was doing as a cashier before [he] left." (Nov. Letter, p. 4.) He was again required to lift heavy items, and stand throughout his shift. (Id.) Plaintiff complained to management that, having just come back from a leave of absence, he should not be required to stand in one spot for extended periods of time. (Id.) Plaintiff specifically spoke with manager Darrel Pinney about feeling lower back and leg pain, and that he felt he was having a relapse by standing through his entire shift. (Id. at 5.) As before, Plaintiff asked to be provided a stool to alleviate pressure on his back and legs. (Id.) This request was denied. (Id.) Plaintiff also requested transfer to a department that did not require the same amount of standing in one place. (Id.) This request was approved, but, after interviewing with the manager of the Lancaster Wal-Mart store, Plaintiff was not called in for any position. (Id.)
Plaintiff returned to Pinney and stated that he was quitting as a result of Wal-Mart's refusal to accommodate or transfer him. (Id.)*fn2 Before doing so, he inquired whether Wal-Mart might approve his request for a stool if he could get a note from his doctor stating that he had developed a relapse after working for three weeks. (Pl.'s Sur-Reply 1.) Wal-Mart responded that any such note would list him as having a work restriction and thus make him ineligible to continue working. (Pl.'s Summary 2.) He was nevertheless told to bring in a form, completed by his physician, showing that he was disabled so that Wal-Mart could pay out the rest of his sick leave and vacation days. (Sur-Reply 3.) As a result, Plaintiff remained technically employed until August 29, 2010, although he was not scheduled for any hours. (Id.)
On August 19, 2010, Plaintiff's physician filled out a note stating that Plaintiff was on "total disability until further notice." (EEOC Mar. 29, 2011 Letter ("EEOC Letter") attached to Compl., p. 1, Docket No. 1.) Plaintiff's physician also filled out another leave of absence request form stating that Plaintiff would be incapacitated for a single continuous period lasting two years.
Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission on November 18, 2010. (Id.)
Plaintiff commenced this action on May 11, 2011 by filing a complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Along with his complaint, Plaintiff filed a motion for leave to proceed in forma pauperis (Docket No. 2), as well as for appointment of counsel, (Docket No. 3). The Honorable Charles J. Siragusa, United States District Court Judge, granted the first motion, but denied, without prejudice, Plaintiff's motion to appoint counsel. (Docket No. 4.)
After being granted an extension Wal-Mart responded to the complaint by filing a motion to dismiss on September 12, 2011. (Docket No. 11.) After briefing Plaintiff was granted leave to file a sur-reply, which he did on March 16, 2012. (Docket No. 23.) Following that filing ...