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Guiseppe Romanello v. Intesa Sanpaolo S.P.A

July 17, 2012

GUISEPPE ROMANELLO, PLAINTIFF-APPELLANT-RESPONDENT,
v.
INTESA SANPAOLO S.P.A., DEFENDANT-RESPONDENT-APPELLANT, ANN STEFAN, DEFENDANT-RESPONDENT.



Romanello v Intesa Sanpaolo S.p.A.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 17, 2012

Andrias, J.P, Friedman, Sweeny, Renwick, Roman, JJ.

Order, Supreme Court, New York County (Louis B. York, J.), entered May 24, 2010, as corrected October 20, 2010, which granted defendants' motion to dismiss the first through fifth and eighth and ninth causes of action, and denied the motion as to the seventh cause of action, modified, on the law, to grant the motion as to the seventh cause of action, and otherwise affirmed, with costs to defendants. Judgment, same court and Justice, entered June 8, 2010, severing and dismissing the complaint as against defendant Ann Stefan, affirmed, with costs to defendant.

The complaint alleges that plaintiff Giuseppe Romanello, an executive employed at the New York branch of defendant Intesa Sanpaolo S.p.A. (Intesa), became disabled on or about January 9 and 10, 2008, due to the onset of illness causing visual disturbances, inability to concentrate or read, and faintness. As a result of his alleged disability, plaintiff did not return to his office after January 10, 2008, with the exception of an unsuccessful attempt to resume work on January 22, 2008. Plaintiff alleges that he has been diagnosed as suffering from major depression, syncope and collapse, neurasthenia, and anxiety.

After plaintiff had been absent from work for more than four months, Intesa sent his counsel a letter, dated May 29, 2008, stating, among other things: "[Plaintiff's leave pursuant to the Family and Medical Leave Act] expires on June 3, 2008 and [Intesa] would appreciate knowing whether he intends to return to work or to abandon his position." In response, by letter dated June 2, 2008, plaintiff's counsel asserted, inter alia, that: (1) plaintiff "remains unable to return to work in any capacity because of his disabling conditions"; (2) plaintiff's "severe and disabling illnesses . . . have prevented him, and continue to prevent him, from working in any capacity, let alone in the capacity in which he had been serving"; (3) plaintiff had "an uncertain prognosis and a return to work date that is indeterminate at this time"; (4) "if there is to be any severance of the employment relationship between [plaintiff] and [Intesa], it will be of [Intesa's] volition only and not an abandonment of position' by [plaintiff]"; and (5) Intesa "will bear any related consequences and liabilities for its termination of [plaintiff's] employment in such circumstances" (emphasis added). Immediately thereafter, however, the letter made another demand suggesting that plaintiff's true concern was not keeping his job but continuing to receive his salary until the next month: "Whether or not [Intesa] chooses to sever its employment relationship with [plaintiff] at this time, [plaintiff] remains entitled to continued payments pursuant to [Intesa's] salary continuation policy for a period of six months after his disability began." Thereafter, Intesa terminated plaintiff's employment as of June 4, 2008.

Plaintiff commenced this action against Intesa and its director of human resources in 2009, asserting nine causes of action. In lieu of answering, defendants moved, pursuant to CPLR 3211(a)(1) and (7), to dismiss all causes of action except the sixth (for breach of contract). The court granted the motion to the extent of dismissing the first through fifth, eighth and ninth causes of action. Plaintiff appeals the dismissal of these claims, while Intesa cross-appeals the denial of its motion with respect to the seventh cause of action. We modify to dismiss the seventh cause of action and affirm the dismissal of the remaining causes of action at issue.

The first and second causes of action allege that Intesa, in terminating plaintiff's employment, discriminated against him on the basis of disability in violation of the New York State Human Rights Law (Executive Law § 296[1][a]) (the State HRL) and the New York City Human Rights Law (Administrative Code of the City of NY § 8-107[1][a]) (the City HRL), respectively. The State HRL prohibits discharging an employee because of a disability, with the term "disability" defined as "limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held" (Executive Law § 292[21]). The City HRL similarly prohibits discharging an employee because of a disability, with the employer afforded an affirmative defense if the complainant "could not, with reasonable accommodation, satisfy the essential requisites of the job" (Administrative Code of City of NY § 8-107[15][b]).

In general, under both the State HRL and the City HRL, an employer is obligated to engage a disabled employee in a "good faith interactive process" to identify a reasonable accommodation that will permit the employee to continue in the position (see e.g. Phillips v City of New York, 66 AD3d 170, 176 [2009]). In this case, the undisputed documentary evidence establishes that Intesa attempted to initiate a good faith interactive process by way of its letter of May 29, which asked plaintiff "whether he intend[ed] to return to work," a question that, by necessary implication, also sought the time frame within which plaintiff expected to be able to resume working, if that was his intention. In light of the undisputed documentary evidence establishing that Intesa made a good faith attempt to open an interactive process with plaintiff for the purpose of reaching a mutually acceptable accommodation, the dissent's suggestion that Intesa did not fulfill its duty to engage in such a process is simply inaccurate. On the contrary, the allegations of the complaint and the undisputed documentary evidence establish, as a matter of law, that it was plaintiff who abruptly cut off the interactive process that Intesa tried to initiate.

In a tone that can only be characterized as hostile, plaintiff's counsel's June 2 letter to Intesa went well beyond merely stating that plaintiff was then disabled for work in any capacity and that he would not be able to resume working for an "indeterminate" period of time. The letter suggested no time frame within which plaintiff's prognosis could be expected to be better understood and a possible date for returning to work could be usefully discussed, nor did it invite Intesa to offer other options; to the contrary, the letter threatened litigation if its demands were not met. The letter essentially shut the door to any further discussion, instead delivering a demand that Intesa grant plaintiff an indefinite leave of absence or else be prepared to face a lawsuit. In other words, the letter from plaintiff's counsel confronted Intesa with an inflexible, categorical demand, with no room for negotiation and no suggestion of a time frame within which plaintiff would be open to revisiting the issue. By spurning in advance, and through counsel, any good faith attempt by Intesa to engage in a bilateral, interactive process to find a way to reconcile both parties' needs, plaintiff discharged Intesa, as a matter of law, of the obligation to continue its efforts to initiate such a process.

The dissent appears to labor under the misconception that the basis for our affirmance of the dismissal of plaintiff's discrimination claims is that "the employee did not come forward with a specific request for an accommodation at the inception of the process." On the contrary, the basis on which we affirm the dismissal of these claims is the unequivocal demand for indefinite leave, coupled with the threat of litigation, with which plaintiff's counsel responded to Intesa's attempt to initiate a dialogue. Plaintiff's hostile and imperious response to Intesa's question foreclosed any possibility of negotiation and was unaccompanied by any suggestion of a future time at which the situation could be reassessed. Significantly, the demand for indefinite leave was made through counsel, indicating that there was no reason to expect a more cooperative disposition to emerge from plaintiff if Intesa made further efforts to pursue a dialogue. Hence, even assuming that an indefinite leave of absence might constitute a reasonable accommodation in a proper case, here, plaintiff's counsel's demand that Intesa either grant indefinite leave or face litigation excused Intesa from further efforts to seek agreement with plaintiff on a reasonable accommodation. The dissent, on the other hand, appears to believe that, notwithstanding plaintiff's counsel's unequivocal pronouncements, Intesa was obligated to importune plaintiff to engage in further discussion. We do not believe that, under these circumstances, the employer's duty extended so far.[*fn1]

The dissent does not dispute that an employee does not invite an "interactive process" by threatening to sue the employer if it fails to grant his initial, maximal demand. The dissent contends, however, that the June 2 letter of plaintiff's counsel "never" threatened litigation, and, for good measure, accuses us of basing our conclusion "upon a distorted interpretation of the facts." The dissent can maintain this position only by selectively quoting the June 2 letter and resolutely ignoring its key statement: "[Intesa] will bear any related consequences and liabilities for its termination of [plaintiff's] employment in such circumstances." Strikingly, nowhere does the dissent quote or refer to this language, which, even when viewed in the light most favorable to plaintiff, cannot reasonably be interpreted as anything other than a threat to sue in the event Intesa terminated plaintiff at any time before he either returned to work or announced that he was relinquishing the position. Such frankly hostile language in a letter from counsel is not reasonably susceptible to interpretation as an invitation to engage in a dialogue aimed at finding an accommodation acceptable to both parties -- a point the dissent apparently concedes by pretending that the language does not exist. Accordingly, the motion court correctly dismissed the first and second causes of action as legally insufficient.[*fn2]

It is ironic that the dissent accuses the majority of "ignoring the context of plaintiff's counsel's statements" when it is the dissent that ignores the language of the June 2 letter that is inconvenient to its position. Meanwhile, the majority takes account of all pertinent contents of the letter, including the language on which the dissent focuses to the exclusion of the threat that immediately follows. Whether it is the majority or the dissent that gives an accurate account of plaintiff's counsel's June 2 letter ...


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