United States District Court, E.D. New York
August 21, 2014, Filed
For Wilma Hunt-Watts, Plaintiff: Albert Van-Lare, Law Offices of Albert Van-Lare, New York, NY; Emily Anne Hariharan, The Law Offices of Albert Van-Lare, New York, NY.
For Nassau Health Care Corp., Defendant: Brian Joseph Clark, Venable LLP, New York, NY.
PAMELA K. CHEN, United States District Judge.
MEMORANDUM & ORDER
PAMELA K. CHEN, United States District Judge:
Before the Court is the motion of Defendant Nassau Health Care Corporation (" NHCC" or " Defendant" ) for summary judgment pursuant to Federal Rule of Civil Procedure (" FRCP" ) 56. Plaintiff's complaint, which was filed pro se , asserts causes of action for: (1) disability discrimination and failure to accommodate a disability in violation of the Americans with Disabilities Act of 1990 (" ADA" ); (2) age discrimination in violation of the Age Discrimination in Employment Act of 1967 (" ADEA" ); and (3) race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ). Defendant moves for summary judgment as to all of Plaintiff's claims. (Dkt. 33.)
For the reasons stated below, Defendant's motion is granted, and judgment is
entered in Defendant's favor on all of Plaintiff's claims.
Defendant is a " New York State public benefit corporation," whose mission is to provide medical and healthcare services to the public. (Dkt. 32 (" Def. St." ) ¶ 1.) As such, Defendant is subject to the New York State Civil Service Law (" CSL" ), which imposes rules on public employers. (Def. St. ¶ 1.) Plaintiff, a licensed podiatrist formerly employed by Defendant, is an African-American female who was approximately 51 years old at the time this lawsuit was commenced. (Dkt. 1 at 3.)
I. Plaintiff's Employment and Accident
The circumstances of this case are unfortunate. (Def. St. ¶ 2.) Plaintiff is a licensed podiatrist who began employment with Defendant in September 2006 as a Civil Service Podiatrist. (Def. St. ¶ 2.) The terms of Plaintiff's employment and the requirements of the podiatrist position are set forth in a written job description promulgated by the Nassau County Civil Service Commission. (Def. St. ¶ 3.) According to the job description, among the required duties of a podiatrist are: " operat[ing] on the bones, muscles, or tendons of the feet for the correction of minor deficiencies and deformities of a mechanical or functional nature," " operat[ing] . . . for diseases, injury, deformity or other conditions of the foot," and " [t]reat[ing] simple and uncomplicated fractures of the bones of the feet." (Def. St. ¶ 4.) These duties are classified in the job description as " ADA ESSENTIAL FUNCTIONS."  (Dkt. 31-6 at 1.)
In approximately July 2007, Plaintiff was involved in a severe automobile accident, and sustained significant injuries to her face and body. (Dkt. 39-2 ¶ ¶ 10-20.) Plaintiff recovered from her injuries and returned to work approximately two-to-three weeks following the accident. (Dkt. 39-2 ¶ 12.) However, some months after her return, in December 2007, Plaintiff began experiencing numbness in her extremities. (Dkt. 39-2 ¶ ¶ 14-15.) As a result of continued numbness and weakness in her extremities, in March 2008, Plaintiff underwent exploratory surgery and a biopsy of her spinal cord to determine the source of the symptoms. (Dkt. 39-2 ¶ ¶ 15; Def. St. ¶ 10.) Plaintiff spent approximately one month in the hospital recovering from the procedure and approximately one year rehabilitating. (Dkt. 39-2 ¶ 17; Def. St. ¶ 11.) During this time, Plaintiff had severe difficulties using her arms and walking. (Def. St. ¶ 10.) Plaintiff was unable to work during this time period and did not return to work at NHCC.
II. Plaintiff's Attempt to Return to Work
The CSL provides that, where a civil service employee is unable to return to work to perform the essential functions of the position within one year of an initial absence due to a non-occupational disability, her employment may be terminated. (Def. St. ¶ 12; CSL § 73.) Pursuant to the CSL, on March 9, 2009, more than a year after the start of Plaintiff's leave from
work, Defendant informed Plaintiff that it intended to terminate her employment unless she was able to return to work in a timely manner. (Def. St. ¶ 12.) In response, Plaintiff contacted Defendant to discuss her return. Plaintiff met with Dr. Glenn Faust, the chairman of Defendant's Department of Surgery, who previously supervised Plaintiff, and Maureen Roarty, Defendant's Executive Vice President of Human Resources. (Def. St. ¶ ¶ 5, 13.)
During the meeting both Dr. Faust and Ms. Roarty observed that Plaintiff had substantial difficulty using her hands, and Plaintiff stated she was unsure whether she could perform medical procedures. (Def. ¶ ¶ 14-16.) Faust and Roarty stated their concerns regarding Plaintiff's ability to perform the duties of the podiatrist position, and Roarty informed Plaintiff that, before she could resume her employment, she would have to undergo medical evaluations to determine whether she was fit to return to work and perform the essential functions of the position. (Def. St. ¶ 17.) Plaintiff underwent the required diagnostics and provided the results to Defendant. (Def. St. ¶ 18-20.)
The results of the evaluations were not positive. Plaintiff's rehabilitation expert, Dr. Jung Ahn, found that Plaintiff's " upper extremities revealed a lack of joint position sense and vibratory sense in both hands, and she [was] unable to recognize an object placed in the hand without looking." (Def. St. ¶ 18.) As a result, Dr. Ahn concluded that Plaintiff " may return to work in non-surgical podiatry" and only was " able to provide consultative services without performing surgery at the present time."  (Def. St. ¶ 18.)
Plaintiff also saw a neurologist, Dr. Imran Wahedna, on April 1, 2009. (Def. St. ¶ 19.) Dr. Wahedna concluded that Plaintiff " ha[d] decreased use of [her] hands." (Def. St. ¶ 19.) Dr. Wahedna stated that she is " cleared to work, but not in the operating room." (Def. St. ¶ 19; Dkt. 31-11 at 2.)
As a result of the evaluations, Dr. Faust and Ms. Roarty determined that Plaintiff was unable to perform the essential functions of her position with or without a reasonable accommodation (Def. St. ¶ 20), and concluded that Plaintiff must be terminated. (Def. St. ¶ ¶ 20, 24.)
Upon notice to Plaintiff that Defendant intended to terminate her, Plaintiff requested a pre-termination hearing to determine whether she was able to perform the essential functions of the position. (Def. St. ¶ 21.) Plaintiff was informed that she had the right under the CSL to present medical evidence in support of her ability to perform her job functions. (Def. St. ¶ 21.) Plaintiff appeared at the pre-termination hearing on June 2, 2009. (Def. St. ¶ 22.) Plaintiff did not present additional medical evidence at the hearing. (Def. St. ¶ 23.)
Plaintiff's employment was terminated on June 16, 2009. (Def. St. ¶ 24.) Although Plaintiff was terminated, she was informed that she could apply for reappointment to her position within one year of the cessation of her disability. (Def. St.
¶ 24.) If Plaintiff could demonstrate her ability to perform the essential functions of a podiatrist, she would be reinstated or placed on a waiting list for the same or another position. (Def. St. ¶ 24.) Plaintiff has not reapplied for employment or submitted additional evidence regarding her fitness for employment. (Def. St. ¶ 25.)
Plaintiff submitted a charge of employment discrimination with the United States Equal Employment Opportunity Commission (" EEOC" ) on or about August 13, 2009. (Dkt. 1 at 4.) The EEOC investigated Plaintiff's claims, and ultimately determined that it was unable to conclude that Plaintiff had been discriminated against, and issued her a right-to-sue letter on or about December 29, 2011. (Dkt. 1 at ECF 12.) Plaintiff timely filed this action pro se on April 11, 2012 (Dkt. 1), and later obtained counsel. Defendant moves for summary judgment with respect to all of Plaintiff's claims, and the motion was fully briefed on November 26, 2013.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only if the submissions of the parties taken together show " that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FRCP 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " The moving party bears the burden of establishing the absence of any genuine issue of material fact," Zalaski v. City of Bridgeport Police Department, 613 F.3d 336, 340 (2d Cir. 2010); see Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006), after which the burden shifts to the nonmoving party to " come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011); see also F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010). A dispute of fact is " genuine" if " the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
The nonmoving party can only defeat summary judgment " by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of" a factual question that must be resolved at trial. Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (internal quotations and citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (alterations in original); see also Lyons v. Lancer Ins. Co., 681 F.3d 50, 56-57 (2d Cir. 2012); Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005). The nonmoving party cannot avoid summary judgment simply by relying " on conclusory allegations or unsubstantiated speculation," Jeffreys, 426 F.3d at 554 (quotations and citations omitted); see also DeFabio v. East Hampton Union Free Sch. Dist., 623 F.3d 71, 81 (2d Cir. 2010); and must offer " some hard evidence showing that its version of the events is not wholly fanciful." Miner v. Clinton Cnty., 541 F.3d 464, 471 (2d Cir. 2008). In determining whether a genuine issue of fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
The Second Circuit has provided additional guidance with respect to motions for summary judgment in employment discrimination cases:
We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, " summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact," McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997), and " may be appropriate even in the fact-intensive context of discrimination cases." Abdu--Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (" It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." ).
Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001)). " However, even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). " When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'Ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
I. Title VII Discrimination Claims Based on Race, Age, and Gender
Plaintiff's complaint asserts claims of employment discrimination based on Plaintiff's race, gender, and age (Dkt. 1 at 3.) Defendant moves for summary judgment with respect to all of Plaintiff's discrimination claims. (Dkt. 33 at 19-28.) Plaintiff's opposition does not respond to Defendant's motion with respect to those claims, instead addressing only Plaintiff's claims based on her disability under the ADA. (Dkt. 39 at 2) (Plaintiff's opposition stating only that " Plaintiff has alleged violations of the [ADA], the Rehabilitation Act and the New York State Executive Law Article 15 based on the Defendant's refusal to grant her reasonable accommodation and the Defendant's decision to terminate Plaintiff because of her disabilities" ). Accordingly, Plaintiff's claims of race, gender, and age discrimination are deemed abandoned and hereby are dismissed. See, e.g., Taylor v. City of N.Y., 269 F.Supp.2d 68, 75 (E.D.N.Y. 2003) (" Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way." ) (citing Douglas v. Victor Cap. Group, 21 F.Supp.2d 379, 393 (S.D.N.Y. 1998) (collecting cases)). Moreover, insofar as Plaintiff haphazardly mentions a claim under the Rehabilitation Act, Plaintiff makes no such claim in her complaint, and cannot make one in response to a motion for summary judgment. See DeFilippo v. ...