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Morse v. Jetblue Airways Corp.

United States District Court, E.D. New York

March 31, 2013

EMILIE MORSE, Plaintiff,
v.
JETBLUE AIRWAYS CORPORATION, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Emily Morse, Plaintiff: Jennifer Lea Smith, Beranbaum Menken Ben-Asher & Bierman, New York, NY; John A. Beranbaum, Beranbaum Menken LLP, New York, NY.

For Jetblue Airways Corporation, Defendant: Edward Cerasia, II, LEAD ATTORNEY, Caitlin Alexis Senff Ladd, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York, NY.

OPINION

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MEMORANDUM AND ORDER

KIYO A. MATSUMOTO, United States District Judge.

Plaintiff Emilie Morse (" Morse" or " plaintiff" ) is a former Inflight Supervisor who worked for defendant JetBlue Airways Corporation (" JetBlue" or " defendant" ) until her termination on July 8, 2006. Plaintiff filed the instant action on November 19, 2009, alleging that defendant wrongfully terminated her employment on the basis of her disability and failed to provide a reasonable accommodation for her disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § § 12101 et seq . (" ADA" ); New York State Human Rights Law § § 290 et seq . (" NYSHRL" ); and New York City Human Rights Law § § 8-101 et seq . (" NYCHRL" ).

The parties have completed discovery and defendant moves for summary judgment on grounds that (a) plaintiff is judicially estopped from asserting her claims; (b) plaintiff's NYSHRL and NYCHRL claims, and certain of her ADA claims, are barred by the applicable statutes of limitations; (c) plaintiff has failed to establish a prima facie case that the defendant/employer failed to accommodate her disability; and (d) plaintiff has failed to establish a prima facie case of discriminatory discharge. Plaintiff opposes the motion in its entirety. For the reasons set forth below, defendant's motion for summary judgment is granted in part and denied in part.

BACKGROUND[1]

Between 2003 and 2006, plaintiff was employed in the Inflight Department of JetBlue as an " Inflight Supervisor." (ECF No. 45, Defendant's 56.1 Statement of Material Facts (" Def. 56.1" ) ¶ ¶ 1-2, 38; ECF No. 53, Plaintiff's 56.1 Statement of Material Facts (" Pl. 56.1" ) ¶ ¶ 1-2, 38; ECF No. 1, Complaint, (" Compl." ) ¶ ¶ 8-9; ECF Nos. 49-2 & 60-3, Deposition of Emilie Morse (" Morse Dep." ), at 9, 212; ECF No. 9, Answer, ¶ ¶ 8-9; ECF No. 49-3, Morse Dep. Ex. 10.) The details of plaintiff's employment history at JetBlue and the allegations giving rise to this action are set forth in detail below.

I. Inflight Supervisor Position

A. Flying Qualification Requirement

As an Inflight Supervisor, plaintiff had to complete certain training and become qualified to fly as a flight attendant. (Def. 56.1 ¶ 8; Morse Dep. 23; Morse Dep. Ex. 1; ECF Nos. 49-6 & 60-5, Deposition of Karen Cozzie (" Cozzie Dep." ) at 42, 50-51.) The requisite qualification training occurred on an annual basis. At first, to be qualified to fly, plaintiff completed FAA-approved " initial training," which required physical activity and actually flying aboard an aircraft in a " check ride." (Def. 56.1 ¶ 9; Pl. 56.1 ¶ 9; Morse Dep. at 33-35, 55, 57-50, 99; ECF No. 49-15, Cerasia Declaration (" Cerasia Decl." ), Ex. N -- Flight Attendant

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Manual; ECF No. 49-16, Cerasia Decl., Ex. O -- Federal Aviation Regulations.)

Each year thereafter, to remain qualified as a flight attendant, plaintiff was required to complete FAA-mandated " recurrent training," which did not require flying. (Def. 56.1 ¶ ¶ 9-10; Pl. 56.1 ¶ ¶ 9-10; Cerasia Decl. Ex. N; Cozzie Dep. at 51-53, 57; Morse Dep. at 31-35.) The recurrent training involved a review of evacuation and emergency procedures as well as physical activity, including opening a " pretty heavy" aircraft door; removing a window from its casing and throwing it over the wing of an aircraft; exiting an aircraft via an emergency slide; and climbing over seats. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11; Morse Dep. at 31-32, 54, 57.)

B. Position Expectations

1. Pre-April 2006

Until April 2006, the job description -- or " Position Expectations" -- for the Inflight Supervisor position included flying onboard aircrafts and being qualified as a flight attendant. (Def. 56.1 ¶ ¶ 4, 8; Pl. 56.1 ¶ ¶ 4, 8; ECF No. 49-3, Morse Deposition Exhibits (" Morse Dep. Ex." ) Ex. 1.) Specifically, the Inflight Supervisor Position Expectations included the following " essential functions" : " Completes inflight observations and evaluate[s] Inflight Crewmembers on a consistent basis" ; " Ensures understanding of job-related information by observing Inflight Crewmembers on duty" ; and " Works in-flight as a qualified Flight Attendant as needed." (Def. 56.1 ¶ 4; Morse Dep. Ex. 1; Morse Dep. at 15-17, 69.)

Morse supervised a group of seventy-five to eighty of JetBlue's flight attendants, or Inflight Crewmembers (" Crewmembers" ), and she was responsible for assessing their performance during flights on " check rides" by observing their teamwork and interactions with passengers, and ensuring that Crewmembers knew how to operate the aircraft's emergency equipment.[2] (Def. 56.1 ¶ 5; Morse Dep. at 15-17, 69.)

In approximately March or April 2005, JetBlue began to require Inflight Supervisors to fly at least twenty hours per month. (Def. 56.1 ¶ 7; Morse Dep. at 19.) Although plaintiff does not dispute the twenty-hour flight requirement for Inflight Supervisors, she claims that it was not enforced in practice, noting that at least three Inflight Supervisors continued to work as Inflight Supervisors for extended periods of time without flying: (1) the plaintiff herself, between December 2004 and July 2005; (2) Denise Piccolo, between January 2004 and May 2005; and (3) John Lewis, between April 2006 and April 2007.[3] (Pl. 56.1 ¶ ¶ 7-8; Morse Dep. at 46-47, 72, 102, 110-11; ECF No. 60-5, Deposition of

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Denise Piccolo (" Piccolo Dep." ) at 30-31, 35-36, 39, 41; ECF No. 60-6, Deposition of John Lewis (" Lewis Dep." ) at 46.)

Approximately two years after plaintiff joined JetBlue, defendant's policies changed and Inflight Supervisors no longer flew as passengers on " check rides" ; instead, when they flew, they worked as part of the working crew and performed tasks alongside Inflight Crewmembers. (Def. 56.1 ¶ 6; [4] Pl. 56.1 ¶ 6; Morse Dep. at 17.)

2. Post-April 2006

In approximately April 2006, JetBlue divided the functions of the Inflight Supervisor position among four newly created Inflight Supervisor positions: (1) Crewmember Experience; (2) Base Operations; (3) Systems Operations; and (4) Onboard Experience. (Pl. 56.1 ¶ 33; Cozzie Dep. at 20-26; Cozzie Dep. Exs. 4 & 6.) Although the core functions of the first three teams did not include flying, " all supervisors flew at some point, or [were] required to be a qualified flight attendant regardless if it was their day-to-day duty or not." (Pl. 56.1 ¶ 33; Cozzie Dep. at 24, 42-51.)

The Position Expectations for the " Inflight Supervisor, Base Operations" position indicated that the position " require[d] strenuous physical work," including " [h]eavy lifting, pushing or pulling of objects up to 100 pounds occasionally and/or up to 50 pounds frequently." (Cozzie Dep. Ex. 6.) The Position Expectations for the " Inflight Supervisor, Systems Operations" position included the " ab[ility] to cover trips away from base overnight" and " willing[ness] to fly trips when required by [irregular operation] situations." [5] (Lewis Dep. Ex. 2.)

II. Plaintiff's Employment History at JetBlue

Plaintiff began working for JetBlue in November 2003 as an Inflight Supervisor. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1; Morse Dep. At 9; Compl. ¶ 9; Answer ¶ 9.) Shortly thereafter, Morse completed initial training to become qualified as a flight attendant. (Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8; Morse Dep. at 30.)

Plaintiff acknowledges that " observing flight attendants flying" was an " important" part of her job as an Inflight Supervisor, and that some of the tasks listed as " essential functions" on the Inflight Supervisor job description involved flying on airplanes. (Pl. 56.1 ¶ 4; Morse Dep. at 25-26, 69.) Nevertheless, plaintiff asserts that in practice, the flying-related functions were not " essential" to the Inflight Supervisor position, because she " never flew a lot" during the period between November 2003 and December 2004. (Pl. 56.1 ¶ 4; Morse Dep. at 25-26, 69.) During that period, plaintiff and her fellow Inflight Supervisors flew onboard airplanes only when they were conducting " check rides" to observe Crewmembers as they worked on a flight. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4; Jenkins Dep. at 14; Morse Dep. at 69.) Plaintiff estimates that at most, she flew approximately twelve times in a month as an Inflight Supervisor. (Def. 56.1 ¶ 6; Morse Dep. at 25-26.)

A. Relief from Flying Duties

Plaintiff was scheduled to complete recurrent training in November 2004, after her first full year at JetBlue; however she

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did not attend the training because she had started to experience back problems. (Def. 56.1 ¶ 12; Pl. 56.1 ¶ 12; Morse Dep. at 33-35, 47, 236; Compl. ¶ 14.) Shortly thereafter, in approximately December 2004, plaintiff's doctor informed her that she was unable to fly. (Def. 56.1 ¶ 30; Pl. 56.1 ¶ 30; Morse Dep. at 60-61, 335-36.) At that time, plaintiff asked Valerie Jenkins (" Jenkins" ), who was then-Manager of Inflight and plaintiff's supervisor, if she required plaintiff to furnish medical documentation to substantiate her inability to fly. Jenkins declined and took plaintiff at her word and informally relieved Morse of her flying requirements due to plaintiff's health problems. (Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13; Morse Dep. at 24, 26-27, 68.) Jenkins also told plaintiff that her health came first, and encouraged plaintiff to recover before worrying about fulfilling her recurrent training requirements. (Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13; Morse Dep. at 35, 52, 94.)

Consequently, in approximately January 2005, Morse stopped flying altogether because JetBlue relieved plaintiff of her flying duties. (Def. 56.1 ¶ 14; Pl. 56.1 ¶ 4, 14; Morse Dep. at 46-47; 62, 72, 102, 110-11.) As a result, other Inflight Supervisors performed the " check rides" of flight attendants who reported to plaintiff. (Def. 56.1 ¶ 15; Pl. 56.1 ¶ 15; Morse Dep. at 63-64.) Plaintiff contends that a number of younger Inflight Supervisors who " loved the opportunity to fly to different cities volunteered" to perform the check rides for plaintiff. (Pl. 56.1 ¶ 15; Morse Dep. at 63, 65.) Plaintiff also maintains that even though she did not fly, she continued to perform all other functions of her position as an Inflight Supervisor. (Pl. 56.1 ¶ 4; Morse Dep. at 46-47; 72, 102, 110-11.)

B. "Dequal" Status

Because plaintiff was unable to fly and could not complete recurrent training, she fell into " dequal" status in approximately January 2005 and was no longer qualified to perform the duties of a flight attendant. (Def. 56.1 ¶ 16; Pl. 56.1 ¶ 16; Morse Dep. at 54-55.)[6] As of July 2005, plaintiff would have had to fly in an aircraft in order to become requalified. (Def. 56.1 ¶ 18; Pl. 56.1 ¶ 18; Morse Dep. at 93; Morse Dep. Ex. 2.) Plaintiff's doctor never cleared her to fly or to complete such training, however.[7] (Def. 56.1 ¶ 18; Pl. 56.1 ¶ 18; Morse Dep. at 53-54, 93.)

To this day, plaintiff has not presented to JetBlue any physician's note indicating that she has been medically cleared to fly. (Def. 56.1 ¶ 30; Pl. 56.1 ¶ 30; Morse Dep. at 60, 335-36.) Plaintiff claims that she asked Jenkins whether she should procure a clearance note from a doctor, and Jenkins said it was unnecessary and that Jenkins would rely on plaintiff's representations

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regarding her ability to fly. (Pl. 56.1 ¶ 30; Morse Dep. at 60-61, 93-94.)

C. Disability Leave and Administrative Termination

On June 24, 2005, Scott Robillard (" Robillard" ), plaintiff's Inflight Manager at the time, informed plaintiff that she was failing to meet the minimum qualifications of an Inflight Supervisor because she had been dequalified as a flight attendant for nearly six months, since January 1, 2005. (Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20; Morse Dep. at 27, 106; Morse Dep. Exs. 2 & 3.) Consequently, Robillard offered three options to Morse on June 24, 2005: (1) " Enter the next training class to become re-qualified" ; (2) " Contact the Benefits Department to explore potential leave options" ; and (3) " Contact your Crewleader to request a 30-day unpaid leave of absence." (Def. 56.1 ¶ 21; Pl. 56.1 ¶ 21; Morse Dep. at 106, 108; Morse Dep. Ex. 3.) Robillard also informed plaintiff that if she did not requalify as a flight attendant or consider either of the other two options by July 7, 2005, she could be administratively terminated. (Def. 56.1 ¶ 21; Pl. 56.1 ¶ 21; Morse Dep. Ex. 3.)

Morse informed Robillard and Jenkins that the first option -- taking the next training class to requalify under FAA regulations -- was " NOT an option and in fact, was disallowed . . . by [Jenkins]" because plaintiff had not been medically cleared to fly. (Def. 56.1 ¶ 22; Pl. 56.1 ¶ 22; Morse Dep. at 106-07, 111-12, 236; Morse Dep. Ex. 3.) Morse also refused the third option -- a thirty-day unpaid leave of absence -- because she needed more than thirty days to recover from a back surgery that was then scheduled to take place on July 7, 2005. (Def. 56.1 ¶ 23; Pl. 56.1 ¶ 23; Morse Dep. at 107, 114-15, 123; Morse Dep. Ex. 3.)

According to defendant, plaintiff conferred with JetBlue's Benefits Department and ultimately chose to take a short-term disability (" STD" ) leave of absence effective July 7, 2005. (Def. 56.1 ¶ 24; Pl. 56.1 ¶ 24; Morse Dep. at 41, 62-63, 118-19, 123, 236.) Plaintiff disputes that this was a " choice" that she made; in her view, defendant " forced" her to accept the STD leave by refusing to provide a fourth option, to continue working with an accommodation, which plaintiff requested and would have chosen had it been granted. (Pl. 56.1 ¶ 24; Morse Dep. 114, 120, 122.) Between June 2005 and July 7, 2005, the only accommodation that plaintiff requested was permission to continue working as an Inflight Supervisor without flying duties. (Def. 56.1 ¶ 26; Pl. 56.1 ¶ 26; Morse Dep. at 133-34.)

Plaintiff's surgeon, Dr. Frank Cammisa, Jr., performed surgery on plaintiff's back on October 12, 2005.[8] (Def. 56.1 ¶ 25; Morse Dep. at 50-51.)

1. JetBlue Termination policy

When plaintiff began her STD leave on July 7, 2005, JetBlue maintained a 52-week administrative termination policy (the " JetBlue Termination policy" ) which provided, in relevant part:

Should a Crewmember not return from any leave discussed in this section at the end of the authorized period, the Crewmember may be considered as having voluntarily resigned or may be administratively terminated, unless otherwise required by law. Any JetBlue Crewmember who exceeds 52 weeks of time

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off in a rolling 24-month period may be considered to have abandoned their job and/or be administratively terminated. . . . Crewmembers must be able to perform all essential functions of their position upon a return to work. If that is not possible the Crewmember may be eligible to request an ADA (Americans with Disabilities Act) accommodation.

(Def. 56.1 ¶ 28; Pl. 56.1 ¶ 28; Morse Dep. at 12, 169; Cozzie Dep. at 119; Morse Dep. Ex. 7.) Although defendant asserts that Jetblue's Termination Policy was applied uniformly to both disabled and non-disabled employees ( see Def. 56.1 ¶ 29; ECF No. 48, Declaration of Robert Bilak (" Bilak Decl." ) at ¶ 2), plaintiff submits evidence disputing the uniform application of the JetBlue Termination Policy, noting that the EEOC determined that JetBlue had " maintained an inflexible 52-week maximum leave policy . . . that create[d] a pattern or practice of denying reasonable accommodation to, and discriminating against, a nationwide class of individuals with disabilities in violation of the ADA from at least March 2004 to [November 2008]." (Pl. 56.1 ¶ 29; EEOC Determination.)

2. Expiration of Plaintiff's 52-Week Leave of Absence

As of April 6, 2006, plaintiff's return-to-work date remained " indefinite." (Def. 56.1 ¶ 30; Morse Dep. at 335-36.) Dr. Frank Cammisa, opined that:

[Plaintiff] cannot return to work. She is 100 percent totally disabled. The patient's job requires her to fly on airplanes frequently and she is unable to do that.

(Def. 56.1 ¶ 31; Pl. 56.1 ¶ 31; Dr. Cammisa Dep. at 34-36; Dr. Cammisa Dep. Ex. 2.) The above opinion by Dr. Cammisa was based on the understanding that plaintiff was a flight attendant, and he was unsure as to whether plaintiff could ever return to work as a flight attendant. (Def. 56.1 ¶ 31; Pl. 56.1 ¶ 31; Dr. Cammisa Dep. at 34-37.)

a. Request for Accommodation: Inflight Supervisor With Relief from Flying

On several occasions in June 2006, one month before her 52-week leave of absence was set to expire, Robillard called and emailed plaintiff to find out " if there [was] anything [JetBlue could] do to support [plaintiff's] return to work." (Def. 56.1 ¶ 32; Pl. 56.1 ¶ 32; Morse Dep. at 183; Cozzie Dep. at 70-73; Cozzie Dep. Ex. 8; Robillard Dep. at 93, 96-97; Robillard Dep Exs. 10, 24.) At that time, plaintiff was still physically unable to fly, assist boarding passengers with their luggage, or respond to emergency situations. (Def. 56.1 ¶ 33; Pl. 56.1 ¶ 33; Morse Dep. at 181-82.) Although defendant asserts that there was no Inflight Supervisor position at JetBlue that did not require flying (Def. 56.1 ¶ 34; Morse Dep. at 185-86), plaintiff submitted evidence, discussed supra Section I.B.2, that in April 2006, the Inflight Supervisor position was reconfigured into four newly created positions, three of which did not include flying as a core function (Pl. 56.1 ¶ 33; Cozzie Dep. at 20-26; Cozzie Dep. Exs. 4, 6).

In any event, Morse asked to return to work as an Inflight Supervisor with an accommodation in the form of permanent relief from flying duties. (Def. 56.1 ¶ 34; Pl. 56.1 ¶ 33; Morse Dep. at 181-86, 240, 245.) Specifically, on June 9, 2006, plaintiff asked Robillard if JetBlue could " restructure [her] job, i.e., eliminate the flying" from her position as an Inflight Supervisor. (Def. 56.1 ¶ 33; Pl. 56.1 ¶ 33; Morse Dep. at 181; Cozzie Dep. at 74; Cozzie Dep. Ex. 8.) She also sought this accommodation from Cozzie, then-Director of Inflight and Robillard's supervisor, and represented to Robillard and Cozzie that she was able to work

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full-time and perform the other duties she performed before her leave, apart from flying. (Pl. 56.1 ¶ 33, 46; Morse Dep. at 180-86, 194.)

On June 30, 2006, Cozzie informed Morse that JetBlue's " current (and past) [Position Expectations] require that all Supervisors are qualified [Inflight Crewmembers]." (Cozzie Dep. 98-99, 111; Cozzie Dep. Ex. 8.) During that conversation, Cozzie also informed Morse that her administrative termination would be effective July 8, 2006.[9] (Def. 56.1 ¶ 35; Pl. 56.1 ¶ 35; Cozzie Dep. at 98; Cozzie Dep. Ex. 8.) Morse also asked Cozzie whether she had spoken to anyone in JetBlue's People (Human Resources) Department to find out whether Morse could be accommodated in any way, and Cozzie said that the People Department could not help Morse. (Pl. 56.1 ¶ 46; Morse Dep. at 189.)

b. Request for Accommodation: Lateral Positions at JetBlue

In June 2006, Morse also asked Robillard to be transferred to another position within JetBlue, and expressed her willingness to make a lateral move or accept a lower-paying job. (Pl. 56.1 ¶ ¶ 33, 46; Morse Dep. at 181-184.) She reiterated that the only thing she could not do was fly. (Pl. 56.1 ¶ 46; Morse Dep. at 181.)

Morse identified two open positions listed on JetBlue's intranet for which she was qualified or could perform with training: (1) Customer Service and (2) Inflight Scheduling. (Def. 56.1 ¶ 46; Pl. 56.1 ¶ ¶ 33, 46; Morse Dep. at 181-84, 186, 270.)

Defendant asserts that between March 2006 and August 2006, there were no job vacancies for a Customer Service Supervisor position at JFK International Airport, and admits that it has had difficulty retrieving records of vacancies from that period. (Def. 56.1 ¶ 47; ECF No. 47, Declaration of Jonathan Toppin (" Toppin Decl." ) ¶ 5; Beranbaum Decl. Ex. 16 at 2.) Plaintiff maintains, however, that she saw a job listing on the company's intranet for a customer service job at JetBlue when she sought to return to work in July 2006. (Pl. 56.1 ¶ 47; Morse Dep. at 183.)

JetBlue's Manager of Talent Acquisitions, Jonathan Toppin (" Toppin" ), confirmed that JetBlue had two vacant Supervisor Crew Services (also known as " Inflight Scheduling" ) positions in Forrest Hills, New York, in May 2006. (Def. 56.1 ¶ 48; Toppin Decl. ¶ 2.) These positions required four to six years of scheduling experience. (Def. 56.1 ¶ 48; Toppin Decl. ¶ 2.) Wilbert Crespo (" Crespo" ) and Erick Capps (" Capps" ) were promoted to fulfill the two vacancies in Supervisor Crew Services on June 7 and 13, 2006, respectively. (Def. 56.1 ¶ ¶ 49-50; Toppin Decl. ¶ ¶ 3-4.)

Toppin initially claimed in a declaration to have reviewed plaintiff's resume and work history before determining that " she does not meet the minimum qualifications for these positions." (Toppin Decl. ¶ 2.) At deposition, however, Toppin admitted that at the time he signed his Declaration, he had not read plaintiff's employment application. (ECF No. 83-24, Deposition of Jonathan Toppin (" Toppin Dep." ) at 50.) Upon review of Morse's original employment application to JetBlue, which described Morse's prior job experience in the airline industry, Toppin conceded that Morse met the minimum qualifications for the Supervisor Crew Services position. ( Id. at 48.)

Plaintiff did not apply for either of these positions, or any other vacant position at JetBlue, however, because she was an " inactive ...


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