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Montesano v. Westgate Nursing Home, Inc.

United States District Court, W.D. New York

July 29, 2013

ANNE M. MONTESANO, Plaintiff,
v.
WESTGATE NURSING HOME, INC., AGNES GAULIN, as an Aider and Abbettor, Defendants

Page 418

For Anne M. Montesano, Plaintiff: Andrew M. Burns, LEAD ATTORNEY, Davidson Fink LLP, Rochester, NY; Steven G. Carling, LEAD ATTORNEY, Underberg & Kessler LLP, Rochester, NY.

For Westgate Nursing Home, Inc., Agnes Gaulin, as an Aider and Abbettor, Defendants: Erica Marie DiRenzo, Lisa G. Berrittella, Thomas N. Trevett, LEAD ATTORNEYS, Trevett, Cristo, Salzer & Andolina P.C., Rochester, NY.

OPINION

Page 419

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge.

INTRODUCTION

This action is brought by Anne M. Montesano against two defendants, Westgate Nursing Home, Inc. (" Westgate" ) and Agnes Gaulin, pursuant to the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101 et seq., and the New York State Human Rights Law (" HRL" ), N.Y. Exec. Law, § 490 et seq . Plaintiff, a former employee of Westgate, alleges that due to her physical disability, defendants discriminated against her, harassed her, and ultimately terminated her employment.

Plaintiff moves for summary judgment on the issue of liability as to her first and second causes of action, which assert discrimination claims under the ADA and the HRL respectively. The Court heard argument

Page 420

on July 15, 2013. For the following reasons, the motion is denied.

FACTUAL BACKGROUND

Since plaintiff is the moving party, the Court, for purposes of the pending motion, does not assume the truth of her allegations. See Young v. County of Los Angeles , 655 F.3d 1156, 1158-59 (9th Cir. 2011) (" on summary judgment the evidence of the non-moving party is assumed to be true" ). Nevertheless, the Court sets forth the facts as alleged by plaintiff, by way of background.

In February 2008, Westgate hired plaintiff as a full-time registered nurse. Plaintiff was hired by Westgate's then-director of nursing, Dawn LaMagna.

Plaintiff allegedly suffers from a disability due to a vitamin B-12 deficiency, which limits her motor skills, including her ability to walk, which in turn requires her to use a walker. Plaintiff alleges that she disclosed her condition to LaMagna prior to being hired, and that LaMagna assured plaintiff that appropriate accommodations would be made for her, to enable plaintiff to perform her job.

For the first few months of her employment, plaintiff was accommodated, as promised; she was allowed to sit at her desk most of the time, and, for those times when plaintiff did need to walk (to check on patients, for example), a basket was affixed to her walker to help her carry patient charts. Plaintiff alleges that she was able to perform her job duties satisfactorily.

From the beginning of plaintiff's employment, however, defendant Gaulin, who was then the assistant director of nursing, took issue with plaintiff's relative lack of mobility and her dependence on a walker. Gaulin's objections did not pose a significant problem for plaintiff at first, but at some point LaMagna left Westgate, and Gaulin became the new director of nursing.[1] Plaintiff alleges that Gaulin instructed other employees not to help plaintiff with such things as carrying food from the cafeteria and opening doors. She also claims that Gaulin imposed new job duties on her, which involved considerably more walking than before.

Plaintiff told Gaulin that these new duties were not a part of her job duties when she was hired, and that LaMagna had hired her for what was mostly a desk job. Gaulin stated that if it had been up to her, she would not have hired plaintiff. She insisted that plaintiff perform the newly-imposed, additional duties, and she stated that plaintiff needed to purchase a motorized scooter, out of her own pocket, to enable her to get around the facility more easily. Gaulin ...


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