The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
Defendants Continuum Health Partners, Inc. ("Continuum") and Long Island College Hospital "("LICH") move for summary judgment against the Complaint of Glenis Chin-McKenzie, which claims sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, and discrimination on the basis of disability, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. For the following reasons, defendants' motion is granted in part and denied in part.
The parties agree on the facts of this case: Plaintiff, who is counseled, did not rebut any of the undisputed facts set forth in defendants' Rule 56.1 statement, and a failure to respond to an adversary's Rule 56.1 statement admits all facts claimed therein. See Amnesty Int'l USA v. Clapper, 638 F.3d 118, 129 n.13 (2d Cir. 2011), reh'g denied, 667 F.3d 163, cert. granted, 182 L. Ed. 2d 1061 (2012) (citing Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998)); see also S.D.N.Y. Local Rule 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party"). The undisputed facts are as follows:*fn1
On March 13, 2006, LICH hired Chin-McKenzie as a dispatcher in the hospital's engineering department. 56.1 ¶ 8. In that role, Chin-McKenzie answered telephone calls notifying the department of necessary repairs or maintenance work within LICH, identified the relevant engineer on duty to perform the task, issued work orders to the relevant engineer, maintained a logbook of the department's responses to service calls, monitored the time taken on various projects, and prepared quarterly activity reports on the department's activity for senior management. Id. ¶ 9. Chin-McKenzie handled more than 1,000 calls each month in her position as dispatcher; she was LICH's sole dispatcher. Id. ¶¶ 10--11.
On March 20, 2006, Chin-McKenzie attended a day-long orientation for new employees. Id. ¶¶ 13, 19. During that session, Norman Werner, a corporate compliance officer from Continuum, trained the new employees on LICH's corporate compliance program. Id. ¶ 13. The program reviewed LICH's code of conduct and its prohibitions on discrimination, harassment, and retaliation. Id. ¶ 14.*fn2 As part of that presentation, Werner offered hypothetical workplace scenarios to illustrate employees' duties under both LICH policies and applicable law; one such scenario addressed sexual harassment. Id. ¶ 17. Werner also gave out LICH's hotline telephone number, to which employees were encouraged to anonymously report behavior violating LICH policy and/or the law. Id. ¶ 18.
A.Chin-McKenzie's Complaint of Sexual Harassment
On October 7, 2008, Chin-McKenzie complained by letter to LICH's human resources department ("HR") that a male supervisor in the engineering department had sexually harassed her. Id. ¶ 20. Chin-McKenzie's letter described three incidents with the supervisor: one on May 15, 2008 and two on September 29, 2008. Id. ¶ 21. Each involved suggestive and/or innuendo-laden verbal comments; one involved non-sexual touching. Id. As described by Chin-McKenzie, the supervisor did not hurt her or touch her sexually; nor did he ask her for a private rendezvous, or seek sexual favors as a "quid pro quo." Id. ¶¶ 24--26. Following these incidents, Chin-McKenzie did not take time off from work or seek medical treatment. Id. ¶ 23.
Immediately after Chin-McKenzie's complaint, HR initiated an investigation of her allegations. Id. ¶ 29. On October 10, 2008, three days after Chin-McKenzie's letter, LICH terminated the supervisor as a result of the investigation. Id. ¶ 30. Following the termination, Chin-McKenzie did not experience any other sexual harassment at LICH. Id. ¶ 34.
B.Chin-McKenzie's Allergic Reactions and LICH's Response
Since at least 2002, Chin-McKenzie has suffered from allergic reactions to certain food products and various species of pollen. Id. ¶ 35. She believes that certain chemical odors exacerbate her allergic reactions. Id. ¶36. During her previous employment at the engineering department of St. Mary's Hospital, her allergies did not require accommodation, although one episode resulted in a visit to the hospital's emergency room. Id. ¶ 37.
Although Chin-McKenzie's allergic episodes at LICH pre-dated the alleged incidents of sexual harassment, she believes that the trauma from those events in 2008 worsened her allergic reactions. Id. ¶¶ 39--40. When Chin-McKenzie had allergic episodes while working, she was either escorted or taken to the Emergency Department ("ED") or Employee Health Service ("EHS"). Id. ¶ 41. Often, following these episodes, Chin-McKenzie was sent home for the rest of the day by the attending physician at the ED or EHS; several times, she stayed home for an additional day or more. Id. ¶ 43. In Chin-McKenzie's absence, some maintenance calls to the engineering department, including emergency calls, went unanswered; others were handled less promptly than by Chin-McKenzie Id. ¶ 44.
In or about mid-2008, Chin-McKenzie lodged a complaint regarding her treatment as a patient in the ED. Id. ¶ 45. Later, in November 2008, her supervisors told her that, henceforth, she would have to comply with the newly-enforced LICH policy, under which a supervisor must refer an ill employee to the EHS or ED. Id. ¶¶ 45--48.
In November 2008, Chin-McKenzie suffered three episodes of severe allergic reactions within a 10-day span. Id. ¶ 50. On Friday, November 7, 2008 she suffered a reaction which she believed was caused by Endust, a cleaning product. She was told to go to the EHS in accordance with LICH policy, but instead phoned the EHS and then proceeded directly to the ED. Id. On Monday, November 10, 2008, she suffered another episode (allegedly due to the lingering smell of Endust near her office); she went to EHS but then demanded to be treated in the ED. Id. ¶ 51. Chin-McKenzie was out of work for the remainder of the week thereafter. Id. On Monday, November 17, 2008, she reported to work, but claimed to feel another episode coming on. Id. ¶ 52. Without notifying her managers or EHS, Chin-McKenzie left her office during working hours to walk around the neighborhood and get fresh air. Id. Because Chin-McKenzie did not inform her supervisors before leaving work, or proceed to EHS, her supervisor generated a memorandum memorializing the incident, and admonishing Chin-McKenzie henceforth to comply with LICH procedures. Id. ¶ 53.
On December 4, 2008, LICH convened a meeting with Chin-McKenzie, engineering department managers, HR officials, and her union delegate in order to discuss Chin-McKenzie's condition and possible accommodations. Id. ¶ 54. As a result of this meeting, the housekeeping manager altered the cleaning schedule to avoid cleaning Chin-McKenzie's work area when she was present. Id. ¶ 55. LICH also arranged for Chin-McKenzie to meet with one of the hospital's allergists. Id. ¶ 56. After that appointment, the allergist determined that Chin-McKenzie was highly allergic to certain pollens and hazelnuts; however, the allergist did not recommend any changes in her working environment. Id. ¶¶ 57--58. Through January 2009, Chin-McKenzie did not demand any modifications of her work environment or routine to accommodate her condition. Id. ¶ 59. In January 2009, a supervisor informed Chin-McKenzie that, based on the allergist's report, LICH understood that no accommodation was necessary to enable Chin-McKenzie to function in her present environment; Chin-McKenzie did not take issue with that determination. Id. ¶¶ 60--61.
In June 2009, Chin-McKenzie suffered another three episodes which required her to leave work for the day and, after two episodes, to take the following day off. Id. ¶ 63. On July 1, 2009, LICH's HR manager convened a meeting with Chin-McKenzie, her union delegate, engineering department supervisors, and a physician apiece from the ED and EHS. There, Chin-McKenzie was asked whether she sought any accommodation to allow her to perform her job functions without a recurrence of such episodes, which had disrupted both her and her co-workers. Id. ¶ 65. Chin-McKenzie had no suggestions. She did, however, request a week's time to consult with her personal doctor. Id. ¶ 66.
On or about July 7, 2009, Chin-McKenzie submitted a letter to LICH making four requests-for (1) installation of an exhaust fan; (2) installation of an air purifier; (3) provision of data, in the form of Material Safety Data Sheets ("MSDS") for the cleaning chemicals used in her workspace; and (4) provision of MSDS for chemicals used by vendors at the hospital. Id. ¶ 67. On July 17, 2009, the engineering department responded, by letter. It noted that (1) it had already provided Chin-McKenzie with an air purifier; (2) Chin-McKenzie had ignored a previous offer to move her desk closer to the window; (3) it had already furnished Chin-McKenzie with MSDS for Endust and a citrus-scented cleaner; and (4) it could not provide additional MSDS data until Chin-McKenzie specified the chemicals whose data she needed. Id. ¶ 68. Chin-McKenzie never responded to the engineering department's requests for specification. However, a ceiling exhaust fan was installed above her desk. Id. ¶¶ 69--70. Chin-McKenzie did not request further accommodation. Nor did she notify LICH that the accommodations offered were inadequate. Id. ¶ 71.
In the fourth quarter of 2009, Chin-McKenzie experienced five more episodes of severe allergic reactions, and missed more work. Id. ¶ 72. She was instructed to undergo a fitness-for-duty examination by the EHS physician; on January 7, 2010, she was examined, after which the doctor determined preliminarily that she was not fit for duty. Chin-McKenzie was then placed on a leave of absence, until such time as the hospital received letters from her personal doctors stating that she was fit to work. Id. ¶¶ 74--75, 77--79.
In January 2010, Chin-McKenzie provided LICH with a letter from her personal allergist. It recommended that she "increase protection against airborne insults with avoidance measures" and confirm that there was "no use of airborne chemicals in the workplace." Id. ¶ 80--81. Because of the nature of the work performed by the engineering department, however, LICH determined that it could not guarantee either that (1) fellow employees, who commonly work with solvents and other chemicals and carry chemical odors on their clothes, would not come into contact with Chin-McKenzie, or (2) such chemicals would not reach her work area. Id. ¶ 83. Accordingly, the examining EHS physician determined that Chin-McKenzie was not fit for duty in the engineering department, but could work in a different area of the hospital, in which such chemicals were not used. Id. ¶ 84.
On February 17, 2010, LICH's HR director sent Chin-McKenzie a letter. It asked her to make an appointment with another employee regarding a possible vacancy elsewhere in the hospital. Id. ¶ 87. Chin-McKenzie was offered five interviews, each for a position outside the engineering department. However, she declined them all, insisting to LICH that any alternative position have the same shift, schedule, and salary as her dispatcher position. Id. ¶ 89. The positions for which Chin-McKenzie was offered interviews, however, were union positions. Each had job requirements and pay set by union contracts, which LICH was powerless to change unilaterally. Id. ¶ 91. After Chin-McKenzie declined these five interviews, neither she nor LICH made any further effort to find her an alternative position within the hospital. Id. ¶ 92. Chin-McKenzie remains, formally, on unpaid leave. Id. ¶¶ 85, 86, 93.*fn3
On April 17, 2009, Chin-McKenzie dual-filed a complaint against LICH with the Equal Employment Opportunity Commission ("EEOC") and New York State Division of Human Rights. Marshall Aff. Ex. 6. It alleged that Chin-McKenzie was discriminated against on the basis of disability. Id. at p. 3. It also alleged that Chin-McKenzie was retaliated against because she had "file[d] a sexual harassment" complaint against her supervisor. Id. at p. 4. The complaint states that the discrimination consisted of "sexual harassment." Id. The handwritten narrative attached to the complaint did not describe the alleged sexual harassment itself. However, it alleged "a pattern of harassment" directed at her after she complained about harassment from the supervisor. Id. at p. 5. On or about February 4, 2010, Chin-McKenzie received a "right to sue" letter from the EEOC. It required her to file suit within 90 days. Compl. at recitals, ECF p. 2 (Dkt. 1).
On May 2, 2010, Chin-McKenzie filed this lawsuit. See Compl. at ECF p. 1. Her Complaint asserts three claims: (1) for sexual harassment, in violation of Title VII; (2) for retaliation based on her complaint of sexual harassment, in violation of Title VII; and (3) for discrimination in employment on the basis of disability, in violation of the ADA. See generally Compl.
On June 30, 2011, discovery in this case concluded. See Dkt. 11. By Order dated September 9, 2011, the Hon. Paul A. Crotty, to whom this case was previously assigned, denied Chin-McKenzie's post-discovery motion to amend the pleadings and add a cause of action. Dkt. 16.
On January 9, 2012, defendants filed this motion for summary judgment. Dkt. 20--27. On February 21, 2012, plaintiff filed her opposition. Dkt. 28--30. On March 9, 2012, after an extension of time, defendants filed a reply. Dkt. 32.
II.The Parties' Arguments
In seeking summary judgment, defendants argue that Chin-McKenzie's sexual harassment claim is deficient because (1) she did not explicitly pursue that claim before the EEOC, and therefore failed to exhaust her administrative remedies; (2) the conduct she alleges is not actionable sexual harassment; and (3) her claim is barred under the defense recognized in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (the "Faragher/Ellerth defense") because LICH promptly responded to her complaints, consistent with its anti-harassment policy. As to Chin-McKenzie's retaliation claim, defendants argue that it fails because (1) the conduct Chin-McKenzie alleges does not constitute an adverse employment action under Title VII, and (2) there is no evidence that any employment action by LICH was caused by her sexual harassment complaint. Finally, LICH argues that Chin-McKenzie's ADA claim fails because (1) Chin-McKenzie does not suffer from a disability, as defined by the ADA, and (2) she was unable to perform her essential job functions in her condition, and did not identify any reasonable accommodation which could have permitted her to do so.
In opposition, Chin-McKenzie argues that (1) she satisfactorily identified her sexual harassment claim in her administrative complaint to put LICH on notice of it; hence, it is not procedurally barred; (2) the conduct she complains of rises to the level of actionable sexual harassment; (3) the Faragher/Ellerth defense is unavailable to LICH, because the alleged perpetrator was a supervisor to whom she was supposed to report such harassment; (4) Chin-McKenzie's allergic reactions constitute a disability under the ADA; (5) her unpaid leave of absence was an adverse employment action; and (6) her leave of absence was caused by the sexual harassment complaint.
III.Applicable Legal Standard
Summary judgment may be granted only where the submissions, taken together, "show  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 movant bears the burden of demonstrating the absence of a material factual question; in making this determination, the court must view all facts "in the light most favorable" to the non-movant. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," because "conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over "facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In cases based on allegations of discriminatory retaliation, courts must use "an extra measure of caution" in determining whether to grant summary judgment "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation omitted). However, "the salutary purposes of summary judgment-avoiding protracted, expensive and harassing trials-apply no less to discrimination cases." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). Thus, even in such cases, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb, 521 F.3d at 137.
The Court addresses defendants' motion as to each of Chin-McKenzie's claims in turn.
A.Chin-McKenzie's Sexual Harassment Claim
Chin-McKenzie seeks damages for sexual harassment allegedly perpetrated by a former supervisor*fn4 who was subsequently terminated. Defendants assert that the sexual harassment claim is not properly before the court, that the conduct complained of does not constitute actionable harassment, and that liability is foreclosed by the Faragher/Ellerth defense. Because the Court is ...