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Lisa Romano v. Chautauqua Opportunities

November 18, 2012


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Lisa Romano commenced this action in October 2010 alleging that her employer, Defendant Chautauqua Opportunities, Inc., discriminated against her on the basis of her disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq. Presently before the Court is Defendant's Motion for Summary Judgment dismissing the amended complaint.*fn1 For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendant's motion should be granted.


Plaintiff worked for Defendant from May 1987 until her termination in November 2008. (Am. Compl. ¶¶12, 23-24; Deposition of Plaintiff Lisa M. Romano, Ex 3 to Attorney Affirmation of Edward J. Wagner, at 64, 68, Docket No. 13.) She began as a nutrition clerk for Defendant's operation of the WIC program, and eventually received a "lateral promotion" to nutritional assistant. (Pl's Dep at 14-15, 34.) Plaintiff subsequently became a department scheduler, a position in which she "coordinated contact efforts between two different programs," the high risk prenatal "MOMs" program and the WIC program, "and any appointments and benefits and client contact within that department." (Pl's Dep at 35, 37-38, 41; Affidavit of Roberta Keller ¶ 2, Docket No. 13; see Deposition of Roberta Keller, Ex 4 to Wagner Affirm, at 59 (referring to Plaintiff's position as 'lead scheduler').)

Plaintiff alleges that she suffers from several disabilities within the meaning of the ADA, including rheumatoid arthritis, scoliosis, degenerative disc disease, and multiple sclerosis. (Am. Compl. ¶ 10.) In 1998, Plaintiff requested a four-day instead of a five-day work week on the advice of her doctors. (Pl's Dep at 41-47; Wagner Affirm Ex. 8, Docket No. 13-5 at 10-12.) That request was granted, and despite a slight reduction in her hours, Plaintiff remained a full-time employee for the remainder of her employment. (Pl's Dep at 47-48.) Plaintiff also obtained a handicap parking sticker in the mid to late 1990s because she had difficulty walking and with her balance. (Pl's Dep at 49-50.) Thereafter she started parking in handicap parking spaces at work. (Id. at 51; 59-60.) Plaintiff testified at her deposition that she was directed to park in a parking lot at the end of the building, where there were at least two designated handicap spots, and that this was adequate "[f]or a time." (Pl's Dep at 59-61.) She had a key at that time allowing her to access the building near her parking spot. (Id. at 61.)

At some point, her key to that door, as well as the keys of certain other employees, was taken away. (Pl's Dep at 62-64.) Although she could not recall what year this occurred, Plaintiff testified that "there were years in between" when the key privilege was revoked and when her employment was terminated. (Pl's Dep at 63-64.) Plaintiff continued to park in the same location, and would gain access by knocking on the door and being let in. (Id. at 65.) Sometime after 2004 it became more difficult to obtain entry to the building this way, as Plaintiff often had to wait longer for someone to open the door or would need to call the front desk for access. (Pl's Dep at 65-68.) On "[s]everal [occasions] over the course of a few years," she had to walk to the front door. (Pl's Dep at 68.) In November 2008, Cathy Bach,*fn2 a supervisor, commented upon opening the side door that Plaintiff "could walk around the front of the building," and that it "look[ed] like [Plaintiff] could use the exercise anyway." (Id. at 90, 93.) Comments from other employees included "You have another doctor's appointment?" and "When are you going to get better?" (Id. at 94-96.) Plaintiff believed that she would be reprimanded if she utilized the handicap parking spaces in the front of the building. (Id. at 70.) She testified, however, that she did not complain to management after the key was taken away and accessing the building through the alternative entrance became difficult. (Id. at 74-76, 82.)

Plaintiff was terminated from her position in November 2008. (Am. Compl. ¶¶ 23-24; Wagner Affirm. Ex 6.) A letter from Defendant informed her that "due to the restructuring of Health Services your position will be eliminated effective November 26, 2008." (Wagner Affirm. Ex 6.) The letter further stated that she would "be notified if the situation changes and your position becomes available and we also welcome an application from you for any position you may qualify for." (Id.) As explained by Defendant's Executive Director Roberta Keller, Defendant operated two federally funded programs in 2008: WIC and MOMs. (Keller Aff. ¶ 2.) Defendant had previously blended the funding for those two programs, however, state regulators expressed dissatisfaction with that approach. (Id. ¶¶ 2-3.) Further, the MOMs program was to be taken over by the county. (Id. ¶ 3.) These changes prompted Defendant to consider restructuring, and a reduction in force committee was formed. (Id.)

Keller served on this committee with Defendant's Human Resources Director Teri Statler and the Director of Plaintiff's department, Kerry Mahalko. (Id. 5.) According to Keller, management reviewed the process and funding constraints and made recommendations regarding service flow to her. (Keller Dep at 42-46; Keller Aff. ¶ 5.) The recommendations were based "on position, not on the people." (Keller Dep at 43.) As a result of the recommendation, Keller decided to eliminate three positions, one of which was the scheduler position held by Plaintiff. (Keller Aff. ¶ 5.) The duties associated with these positions would be absorbed into other positions. (Keller Dep at 48; Keller Aff. ¶ 5.) Particularly, Plaintiff's duties were incorporated into the health support specialist positions. (Keller Dep at 50-51; Keller Aff ¶¶ 5-6.) Keller averred that these positions were not filled by new hires, but were created by expanding the job descriptions of persons already employed within the organization to include formerly fragmented duties. (Keller Aff ¶ 6.) "Health support specialists combined the clerical, scheduling duties that [P]laintiff had performed with other duties, including education functions and helping navigate clients to the services for which they qualified." (Id.; Keller Dep at 41-42.) The clerk-scheduler position was therefore no longer required. (Keller Aff ¶ 6; Keller Dep at 41-42.)

Plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR") on January 6, 2009, which was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). (Am. Compl. ¶ 7.) The NYSDHR found no probable cause to support the allegations in the state charge, and the EEOC adopted the findings of the state agency and issued a right-to-sue notice on July 7, 2010. (Am. Compl. ¶¶ 8-9; Wagner Affirm. Ex 12.) Plaintiff commenced the instant action on October 5, 2010. (Compl., Docket No. 1.)


Summary judgment is appropriate, even in a discrimination case, where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert denied 540 U.S. 811 (2003). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609 F.3d at 545. "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Weinstock, 224 F.3d at 41 (quotingAnderson, 477 U.S. at 248). Further, a court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).

"The ADA prohibits discrimination against a 'qualified individual with a disability because of the disability' in the 'terms, conditions, and privileges of employment.' " Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005) (quoting 42 U.S.C. § 12112 (a)). "Claims alleging disability discrimination in violation of the ADA are subject to the burden-shifting analysis originally established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009). Under this analysis, " '[a] plaintiff must establish a prima facie case; the employer must offer through the introduction of admissible evidence a legitimate non-discriminatory reason for the discharge; and the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext.' " McBride, 583 F.3d at 96 (quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)); see Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000) (describing a plaintiff's initial burden as minimal), cert denied 530 U.S. 1261 (2000).

Plaintiff alleges two separate grounds for Defendant's alleged violation of the ADA: (1) Defendant's failure to provide a reasonable accommodation for her disability; and (2) the alleged discriminatory termination. For the reasons discussed below, Defendant's ...

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