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Gorbea v. Verizon New York, Inc.

United States District Court, E.D. New York

March 10, 2014

SONYA GORBEA, Plaintiff,


KIYO A. MATSUMOTO, District Judge.

Plaintiff Sonya Gorbea brings this action against her employer, Verizon New York, Inc., alleging employment discrimination and retaliation on the basis of her alleged disabilities of back sprain since 2001 and asthma since 2007, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and the New York City Human Rights Law, Administrative Code § 8-107 et seq. ("NYCHRL"). ( See generally Am. Compl., ECF No. 7.) Presently before the court are plaintiff and defendant's respective motions for summary judgment, made pursuant to Federal Rule of Civil Procedure 56. (Pl. Mot., ECF No. 26; Def. Mot., ECF No. 36.) As set forth below, plaintiff's motion is denied in its entirety, and defendant's motion is granted in part and denied in part. The parties shall appear for a status conference on April 2, 2014 at 12pm to discuss a May trial date.


The following facts are drawn primarily from the parties' statements made pursuant to Local Civil Rule 56.1.[1] ("Pl. 56.1 Stmt., " ECF No. 28; "Def. Resp. 56.1 Stmt., " ECF No. 41; "Def. 56.1 Stmt., " ECF No. 38; "Pl. Resp. 56.1 Stmt., " ECF No. 35.) Except where noted, the facts are undisputed. In addition, as will be discussed further below, much of the documentary evidence the parties offer in support of their claims is inadmissible and is therefore not referenced in this fact section. See Bey v. City of New York, No. 99-CV-3873, 2009 WL 2033066, at *2 (S.D.N.Y. July 10, 2009) (citing Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155, 160 (2d Cir. 1999)) ("Plaintiffs correctly note that inadmissible evidence, such as hearsay not subject to any exception, cannot be used to support a summary judgment motion."); see also Faulkner v. Arista Records LLC, 797 F.Supp.2d 299, 305 (S.D.N.Y. 2011) (noting that it is "the rule that only admissible evidence' need be considered on summary judgment'" and that the "principles governing admissibility of evidence do not change on a motion for summary judgment." (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997))).

Plaintiff began working for defendant in 1997, and became a field technician in 1999. (Pl. 56.1 Stmt. ¶ 1; Def. 56.1 Stmt. ¶ 3.) Verizon's job description for field technicians includes, but is not limited to, the requirements of climbing ladders and, in some areas, poles, and moving or lifting 100 or more pounds. (Field Technician description of duties at 2; Casher Decl. Ex. C.)[2] On October 15, 2001, plaintiff suffered an on-the-job injury while moving a ladder and was diagnosed with "lumbosacral sprain." (Pl. 56.1 Stmt. ¶ 2, Ex. 1) Following this injury, plaintiff began to suffer intermittent back problems. (Def. 56.1 Stmt. ¶ 11.) Defendant placed plaintiff on "light duty status, " limiting the amount plaintiff had to climb, lift or carry, for various periods of time after this injury, but it is not clear from the record what light duty entailed. (Pl. 56.1 Stmt. ¶ 3; Def. R. 56.1 Stmt. ¶ 13.) Plaintiff was most recently placed on light duty status from March 20, 2007 to February 28, 2011. (Pl. 56.1 Stmt. ¶ 3.) In 2009, plaintiff took three or four weeks of medical leave due to back pain, but otherwise did not require medical leave from approximately 2005 to 2009. (Def. 56.1 Stmt. ¶¶ 15-16.)

In addition to her back injury, plaintiff also asserts that she is disabled as a result of her asthma. According to plaintiff, she developed asthma in 2007. There is no evidence that plaintiff notified defendant or requested any accommodation for her asthma until July 2010. ( See Pl. 56.1 Stmt. ¶ 5; Def. 56.1 Stmt. ¶¶ 10-11.) On July 7, 2010, plaintiff requested an air-conditioned work vehicle, stating that the temperature in her assigned truck exacerbated her asthma. (Pl. 56.1 Stmt. ¶ 5; Def. R. 56.1 Stmt. ¶ 18.) Plaintiff's supervisors did not provide her with an air-conditioned truck. (Pl. 56.1 Stmt. ¶ 7.) Plaintiff was absent from work from July 7, 2010, the date of her air-conditioned truck request, to July 26, 2010, and defendant granted plaintiff a Family Medical and Leave Act accommodation due to her asthma on August 5, 2010, but it is not clear from the record what the accommodation was, (Pl. 56.1 Stmt. ¶¶ 9-10.)

The parties disagree about whether an air-conditioned truck was in fact available for plaintiff to use. ( See Pl. 56.1 ¶ 8; Def. Resp. 56.1 Stmt. ¶ 8.) During her deposition, plaintiff stated that she observed available air-conditioned trucks, but estimated that, at the time of her request, only one to two percent of defendant's trucks had air-conditioning. (Gorbea Dep. Tr. at 47, 160; see also Def. R. 56.1 ¶ 22.)[3]

Shortly thereafter, in July or August of 2010, defendant transferred plaintiff and other employees on light duty to its air-conditioned Flatbush Extension facility to perform office work. (Pl. 56.1 Stmt. ¶ 11; Def. 56.1 Stmt. ¶ 23.) Plaintiff continued to work at the Flatbush Extension building through October 2010. (Def. 56.1 Stmt. ¶ 26.) During this period, specifically on September 9, 2010 and October 12, 2010, defendant noted plaintiff's good work attendance. (Pl. 56.1 Stmt. ¶ 13.)

On October 14, 2010, defendant informed the employees in the office in which plaintiff worked that the office would be fumigated that evening in order to rid the space of bed bugs. (Def. 56.1 Stmt. ¶ 27.) Plaintiff was not present during the fumigation; however, the following day at the office, she had difficulty breathing and exited the office to use her inhaler. (Def. 56.1 Stmt. ¶¶ 27-29; Pl. Resp. 56.1 Stmt. ¶ 28.) Plaintiff's manager permitted her to leave work in order to receive medical attention and assisted her in filing an incident report. Plaintiff was absent from work for several days thereafter. (Pl. 56.1 Stmt. ¶ 17; Def. 56.1 Stmt. ¶¶ 30-31.) According to the doctor's report associated with plaintiff's worker's compensation claim, plaintiff saw her doctor on October 15, October 19, October 22, October 29, and November 6, 2010, in addition to an emergency room visit on October 26. (Vadhan Rep., Pl. Ex. 8, ECF No. 29-8.) Plaintiff's doctor diagnosed her with reactive airway dysfunction syndrome and bronchospasm and recommended that plaintiff return to work on December 7, 2010 and limit her exposure to chemicals, dust and high temperatures. (Pl. 56.1 Stmt. ¶ 15; Pl. Ex. 8; see also Def. Resp. 56.1 Stmt. ¶ 15 (defendant appears to dispute the severity of plaintiff's symptoms but not the doctor's diagnoses).)

Following the above incident, plaintiff was absent from work for several days, including for several hours on October 18, 2010. Plaintiff claims that October 18 was a preapproved vacation day, but the documentation she submitted does not established that she was on pre-approved leave on October 18. (Pl. 56.1 Stmt. ¶ 17; Def. 56.1 Stmt. ¶ 32.) Defendant suspended plaintiff for 30 days, from October 21, 2010 to December 6, 2010, stating that plaintiff's several-hour absence on October 18 was unauthorized. (Def. 56.1 Stmt. ¶ 32.)[4] A Workers' Compensation Board hearing was held on February 25, 2011 and the Board, on March 2, 2011, subsequently authorized plaintiff's medical care but found that plaintiff's "lost time claimed was due to her being suspended and unrelated to her medical condition." (Pl. Ex. 9, ECF No. 29-9.)

On or about October 29, 2010, during her suspension, plaintiff requested that she be provided with ergonomic equipment for her desk, and submitted her treating physician's letter dated October 29, 2010 in support. (Pl. 56.1 Stmt. ¶ 19.) Plaintiff continued to have back pain when she returned to work and, on December 17, 2010, requested to go home because she was in too much pain to continue working. (Pl. 56.1 Stmt. ¶ 20.) Since that date, plaintiff has been on medical leave. (Pl. 56.1 Stmt. ¶ 29; Def. 56.1 Stmt. ¶¶ 37-39.)

Although she has not submitted any admissible evidence to support this point, plaintiff asserts, and defendant agrees, that, on March 1, 2011, "Defendant was informed that Plaintiff could return to work with similar restrictions to those she had previously in the field or to an office with the ergonomic accommodations previously requested so long as her return was gradual." (Pl. 56.1 Stmt. ¶ 21; Def. 56.1 Stmt. ¶ 21.) Again, the record is void of any evidence of what restrictions plaintiff had been granted in the field.

Most of the other circumstances surrounding plaintiff's current medical leave and condition are in dispute. Plaintiff states that Verizon decided in May of 2011 that it could not accommodate plaintiff in either the field or an office, and that a possible accommodation existed (though not within the plaintiff's requested time restrictions) but that this accommodation was never communicated to plaintiff. (Pl. 56.1 Stmt. ¶¶ 22-23, 26.) Defendant asserts that there were no office assignments available for any light-duty technicians by March 2011, citing only plaintiff's deposition testimony that the light-duty technicians she knew at the Flatbush Extension were now back in the field. Defendant submitted no other admissible evidence in support of its contention that office assignments were no longer available as of March 2011. (Def. Resp. 56.1 Stmt. ¶¶ 22-23 (citing Gorbea Dep. Tr. at 92-94).) Defendant further denies plaintiff's claim that light duty assignments in the field are available to plaintiff, asserting only that plaintiff admitted that she lacked personal knowledge about other light duty assignments. (Def. Resp. 56.1 Stmt. ¶ 27.) Again, defendant failed to submit any other admissible evidence regarding the availability, or lack thereof, of light duty field assignments.

The most recent medical documentation in the record regarding plaintiff's health is a July 11, 2011 medical report following an exam performed by Dr. Stanley Soren on the same day. The report indicates that, as a result of the 2001 injury, plaintiff continued to have a previously diagnosed lumbosacral sprain that constitutes "a minimal mild temporary partial disability" with a "guarded to good" prognosis. (Soren Rep. at 5.)[5] During the exam, plaintiff complained of "low back spasms, which come and go with paralysis of the legs' for three minutes at a time." (Soren Rep. at 2). The doctor recommended home exercise, a supervised weight reduction program and that plaintiff could "return to work in a light-duty capacity, avoiding repetitive bending, twisting, pushing, pulling, climbing or lifting more than an occasional 25 pounds." (Soren Rep. at 5.)

Plaintiff testified during her May 29, 2012 deposition that she continues to spend time "resting her back" and that she requires breaks when walking or sitting in a standard chair. (Gorbea Dep. Tr. at 107, 163-64.) She also testified that she cannot lift more than twenty pounds and that she is unable to climb. (Gorbea Dep. Tr. at 140, 156.) However, plaintiff also stated that she was able to exercise by walking on the treadmill three times a week and doing water aerobics, climb the stairs of her home, and perform housework, such as vacuuming and steam cleaning. (Gorbea Dep. Tr. at 105-06, 149, 165.) During her deposition, Ms. Gorbea did not describe any current limitations on her activities due to her asthma.


I. Summary Judgment ...

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