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Lewis v. Blackman Plumbing Supply L.L.C.

United States District Court, S.D. New York

September 29, 2014

GENE D. LEWIS, Plaintiff,

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For Plaintiff: Nathaniel K. Charny, Esq., Thomas Edward Feeney, Esq., Charny and Associates, Rhinebeck, N.Y.

For Blackman Plumbing Supply L.L.C. and Orange County Plumbing Group, L.L.C., Defendants: Douglas Evan Rowe, Esq., Sanjay V. Nair, Esq., Certilman, Balin, Adler & Hyman, East Meadow, N.Y.

For Orange County Plumbing Group, L.L.C., Ridgewood Corp., and Jules M. Weinstein, Defendants: Kenneth L. Moskowitz, Esq., Brown Moskowitz & Kallen, P.C., Summit, N.J.

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Plaintiff Gene Lewis filed the instant Complaint against Defendants Blackman Plumbing Supply L.L.C.; Orange County Plumbing Group, L.L.C.; Ridgewood Corp.; and Jules M. Weinstein, alleging multiple counts under federal and state law arising out of Plaintiff's employment relationship with Defendants. Before the Court is Defendants Blackman Plumbing Supply L.L.C. and Orange County Plumbing Group, L.L.C.'s (" Defendants" ) Motion for Summary Judgment. For the following reasons, the Court grants Defendants' Motion in part and denies it in part.

I. Background

A. Factual History

Plaintiff, currently in his sixties, was diagnosed with bone deterioration in his hip in May 2006. ( See Def. Blackman Plumbing's Statement of Material Facts (" Defs.' 56.1 Statement" ) ¶ 14 (Dkt. No. 48).) At that time, he worked for Defendant Ridgewood Corp. (" Ridgewood" )--a commercial provider of plumbing supplies--where he was an assistant manager at Ridgewood's Middletown, N.Y. branch. ( See id. ¶ 7.) After receiving his diagnosis, Plaintiff informed the Middletown branch manager, Richard Robinson (" Robinson" ), that he " suffered from a disability" and that he " would eventually need to have [his] hip replaced." ( See Pl.'s Local Rule 56.1 Statement (" Pl.'s 56.1 Statement" ) ¶ 16 (Dkt. No. 63).) He also submitted to Robinson a doctor's note confirming this information, and he told Robinson at that time that " he was having difficulty lifting things." ( Id.; see also Aff. of Gene Lewis (" Pl.'s Aff." ) Ex. 1 (Dkt. No. 61) (doctor's note describing Plaintiff's diagnosis, dated May 22, 2006).) Robinson responded that " he would 'put [the doctor's note] on file.'" ( See Pl.'s 56.1 Statement ¶ 16.)

" Almost immediately" after informing Robinson of his diagnosis, " Robinson's treatment of Plaintiff changed for the worse." ( Id.) Specifically, Robinson began " watch[ing] Plaintiff's movements more vigilantly" ; " call[ing] upon Plaintiff with even more frequency to do the order picking from the warehouse, especially when it involved very heavy objects" ; " requiring Plaintiff to pick orders without regard to the weight limitations" ; and " not allowing Plaintiff to use the picker when picking orders in the warehouse," but instead " requir[ing] [Plaintiff] to use a hand truck." ( Id. ¶ 12.)[1] Robinson also began to make negative comments toward Plaintiff, many times in front of customers, telling Plaintiff that he was " slow," calling him a " gimp," and generally " communicat[ing] frustration . . . related to Plaintiff and his hip problems." ( Id.) Robinson also " repeatedly threatened" that he would fire Plaintiff if Plaintiff " was ever deemed less than '100%.'" ( Id.) In response, Plaintiff, fearful of losing his job, " did the best [he] could do to accomplish the tasks assigned to [him] and [he] tried to complain as little as possible," even though it was " painful" for him to do so and it possibly " made [his] condition worse." (Pl.'s Aff. ¶ 14.)

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Experiencing " increasing pain and discomfort," and suffering from Robinson's " increasing" " mistreatment," Plaintiff saw an orthopedic surgeon in March 2008. ( See id. ¶ 15.) Thereafter, that doctor issued a " disability certificate," which placed a number of " restrictions" on Plaintiff's physical activity, including that he should " no[t] lift[] [anything] over 25 [pounds]," and that he should not engage in " prolonged standing or walking or climbing[.]" (Pl.'s Aff. Ex. 2, at unnumbered 2 (disability certificate, dated March 18, 2008).) The certificate was " faxed directly to Robinson." (Pl.'s Aff. ¶ 15.) Subsequently, Robinson appeared to be " extremely aggravated by the whole subject" of Plaintiff's disability, and he told Plaintiff " unequivocally . . . that [Ridgewood] does not allow workers who are not 100% and that if [Plaintiff] ever present[ed] as less than 100% physically able[,] or if [Plaintiff] [went] out on medical leave because of [his] disability[,] [he] better be 100% upon [his] return or [he] would lose [his] job." ( Id. ¶ 16.) Robinson also continued his general mistreatment of Plaintiff, acting " dismissive" of Plaintiff's disability, " yelling at [Plaintiff], calling [him] names[,] and insisting that [Plaintiff] continue to do the heavy lifting work." ( Id. ¶ ¶ 17-18; see also id. ¶ ¶ 19-20 (alleging that Robinson continued to threaten to fire Plaintiff and that he continued to deny Plaintiff's requests to use the picker).)

In the fall of 2009, Plaintiff was transferred from the Middletown branch to a branch located in Newburgh, NY. ( See id. ¶ 21.) With Robinson remaining at the Middletown branch, Plaintiff was relieved that he " was no longer subject to Robinson's unrelenting ridicule and criticism[.]" ( Id. ¶ 22.) Moreover, although Plaintiff " was still called upon to perform tasks that required [him] to lift in excess of 25 pounds[,]" Plaintiff alleges that this happened " far less often" than at the Middletown branch, and that the Newburgh branch management made " at least some efforts . . . to provide the . . . accommodations" that his doctor had previously ordered. ( Id.) Specifically, Plaintiff " received help" with lifting tasks " each and every time he asked for [it]," and " when he could not do the task," the Newburgh branch management " understood, showed compassion[,] and assigned the task to someone else." (Pl.'s 56.1 Statement ¶ 30.)

In 2010, Ridgewood filed for bankruptcy protection. ( See Defs.' 56.1 Statement ¶ 96.) Thereafter, a bankruptcy court issued an order allowing Ridgewood " to sell substantially all of its assets to Sovereign Bank, a secured party with loans" on which Ridgewood had defaulted. (Aff. of Diane C. Nardone in Supp. of Partial Summ. J. (" Nardone Aff." ) ¶ 4 (Dkt. No. 51); see also Nardone Aff. Ex. K (bankruptcy court order, dated July 16, 2010).) As part of the bankruptcy reorganization, Defendant Blackman Plumbing Supply, L.L.C. (" Blackman" ), acting through two of its wholly owned subsidiaries (Defendant Orange County Plumbing Group, L.L.C. (" OCPG" ) and non-party New Jersey Plumbing Group, L.L.C. (" NJPG" )), purchased many of Ridgewood's assets--such as facilities leases and customer data--from Sovereign Bank. ( See Nardone Aff. ¶ 5; Defs.' 56.1 Statement ¶ 97; see also Nardone Aff. Ex. L (" Secured Party Sale and Disposition Agreement," entered into between OCPG, Sovereign Bank, and Ridgewood); Nardone Aff. Ex. M (" Bill of Sale," entered into between NJPG, Sovereign Bank, and Ridgewood).)

Blackman thereafter " took over operation of the [Ridgewood] stores," including the Newburgh branch. (Pl.'s Aff. ¶ 23; see also Pl.'s 56.1 Statement ¶ ¶ 152-53 (alleging that " [t]here was no interruption in the operation of the business as it changed ownership to Defendants," and that " Defendants

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held themselves out as the successor to Ridgewood Corp." ).) Plaintiff remained employed at that branch, with " no break in service" resulting from the takeover. ( See Pl.'s Aff. ¶ 45 (" In July 2010 I had no break in service as it relates to my employment in the Newburgh Branch. On July 18, 2010 I was employed by Ridgewood Corp. and the next day I was employed by [Blackman]." ).) Blackman did, however, replace the Newburgh branch manager with Scott Brown (" Brown" ), who gave Plaintiff " very good ratings" and recommended that Plaintiff receive a pay raise in a December 2010 performance evaluation. ( Id. ¶ ¶ 23, 25.)[2]

In April 2011, Blackman told Plaintiff that it was closing the Newburgh branch and that it would transfer Plaintiff back to the Middletown branch, where Robinson remained the manager. ( See id. ¶ 26.) " Terrif[ied]" about the prospect of working under Robinson's supervision, and cognizant that his disability was " worsening[,]" ( id. ¶ 27), Plaintiff called Fenton Harpster (" Harpster" ), Blackman's Regional Sales Manager of the Southern Division, ( see Defs.' 56.1 Statement ¶ 42), approximately " two weeks before [he] was supposed to start at Middletown[,]" (Pl.'s Aff. ¶ 28). Plaintiff told Harpster that he " was disabled because of [his] hip problems" and that he " was worried about being back under Robinson's supervision" given Plaintiff's previous experience with Robinson. ( Id.) Harpster responded that " the transfer was still going to happen," that Plaintiff " should address [his] concerns directly to Robinson," and that Harpster " would not get involved until after [Plaintiff] had tried [a] direct approach with Robinson." ( Id. ¶ 29.) Plaintiff, still " very worried about keeping [his] job[,]" " let the conversation with Harpster end at that point and prepared [himself] to suffer through Robinson's supervision." ( Id. ¶ 30.)

Subsequent to Plaintiff's transfer, " Robinson's abusive behavior picked up where it left off." ( Id. ¶ 32.) Although Plaintiff " cannot recall" a time when Robinson " called [him] the nickname 'gimp'" after Plaintiff returned to the Middletown branch as a Blackman employee, he alleges that Robinson " did . . . all of the other things he had done to [Plaintiff] when [Plaintiff] was previously under his supervision" as a Ridgewood employee, " including assigning [Plaintiff] tasks that required lifting in excess of 25 pounds, demanding that [Plaintiff] proceed to the warehouse and pick [up] orders even though there were [non-disabled] people . . . [available] to do that work[,] and mocking and ridiculing [Plaintiff] because of [his] disability." ( Id.) Plaintiff specifically alleges that Robinson criticized him, sometimes in front of customers, for being slow and clumsy, and that on multiple occasions Robinson " made reference to having a 'shovel' and needing a 'bag of fertilizer,'" which Plaintiff describes as " a reference to [Plaintiff] being near death and ready to be buried." ( Id. ¶ 33.) Pursuant to Harpster's instructions, Plaintiff " attempted to complain to Robinson about [his] behavior[,]" but Robinson " would not listen." ( Id. ¶ 34.) Instead, Robinson told Plaintiff " that he did not care" and then " ordered [Plaintiff] to go back to work." ( Id.)

On June 1, 2011, approximately eight weeks after Plaintiff was transferred to the Middletown branch, Plaintiff was terminated. ( See id. ¶ 40.) Harpster arrived at the branch " late in the day . . . and proceeded directly to Robinson's office." ( Id.) The two " met behind closed doors . . .

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for at least an hour[,] during which [Plaintiff] saw them talking and looking at things on the computer screen." ( Id.) Harpster then left Robinson's office, " immediately came to [Plaintiff's] desk," " without hesitation said [to Plaintiff] 'it is not working out between you and Blackman,'" and " told [Plaintiff] that [he] was being let go." ( Id.) Harpster then " instructed [Plaintiff] to leave immediately[.]" ( Id.)

Plaintiff alleges that Robinson was involved in the decision to terminate him and that he was fired " because of his disability." ( Id. ¶ 43; Pl.'s 56.1 Statement ¶ ¶ 78, 80, 84.) At the time he was terminated, Harpster told Plaintiff that " it [was] not working out between [Plaintiff] and Blackman." (Pl.'s Aff. ¶ 40.) Shortly after Plaintiff was terminated, however, Robinson told another employee, Joan Kukelka (" Kukelka" ), that he had " felt sorry for [Plaintiff] because he was hurting and he was sitting behind a desk and it was hard for him to move around, so [unemployment] was the best scenario." (Decl. of Sanjay V. Nair (" Nair Decl." ) Ex. G (" Kukelka Dep." ), at 28-29 (Dkt. No. 50).) Defendants have separately maintained that Plaintiff was laid off because the Middletown branch was losing money and Plaintiff had the lowest sales numbers in the branch. ( See Pl.'s 56.1 Statement ¶ ¶ 120, 122, 124.) But Plaintiff alleges that his sales figures were the same as other employees who were not laid off at the time. ( See Nair Decl. Ex. B (" Robinson Dep." ), at 88 (" Q. And how was Gene doing relative to the other inside sales reps? A. Probably about the same as two others." ); Aff. of Fenton Harpster in Supp. of Partial Summ. J. (" Harpster Aff." ) ¶ 7 (Dkt. No. 68) (averring that Plaintiff's " sales numbers were unremarkable in that they were no different than two other inside salespersons at the time . . . who, like [Plaintiff] also were not hitting their sales quotas" ).) And he alleges that Robinson's discriminatory mistreatment purposefully and directly contributed to his low sales figures. ( See Pl.'s 56.1 Statement ¶ 72 (alleging that " Robinson took steps to purposefully interfere with Plaintiff's ability to perform his job duties successfully" ).) Alternatively, Defendants maintain that Plaintiff was terminated because his skillset was " differe[nt]" and less " versatile[e]" than that of his co-workers. ( Id. ¶ ¶ 121, 123; see also Harpster Aff. ¶ 7 (averring that other employees with low sales numbers comparable to Plaintiff's " were capable of specialized sales and sales lead generation in . . . areas . . . [where Plaintiff] was not [as capable]" ).)

No later than 90 days after Plaintiff was terminated, Harpster requested draft copy for a help-wanted advertisement for a position that was " precisely the same job that [Plaintiff had] held." ( See Pl.'s Aff. ¶ 49; Pl.'s 56.1 Statement ¶ ¶ 131-32 (alleging that " Harpster requested, reviewed and approved the publication of a help wanted advertisement for Plaintiff's position in the Middletown branch" ).)[3] Defendants eventually hired Fred Krampath (" Krampath" ) to fill the position. ( See Pl.'s 56.1 Statement ¶ 146.)[4] Krampath is not disabled,

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( see Robinson Dep. 101 (" Q. Does [Krampath] have a disability? A. None that I'm aware of." )), and he was less qualified than Plaintiff, ( see Decl. of Nathaniel K. Charny (" Charny Decl." ) Ex. 5 (Krampath's ré sumé ) (Dkt. No. 65) (indicating that Krampath had only five years of sales experience in Blackman's industry, and that Krampath had not worked in that industry for many years before he was hired); see also Pl.'s Aff. ¶ 52).

B. Procedural History

Plaintiff initially filed a lawsuit against Blackman, OCPG, Ridgewood, and Jules M. Weinstein (" Weinstein" ), a principal officer of Ridgewood, in September 2011, alleging that those Parties violated federal and state labor laws by failing to pay Plaintiff minimum and overtime wages. ( See Compl. (Dkt. No. 1).) Plaintiff then filed a charge of employment discrimination with the Equal Employment Opportunity Commission (" EEOC" ) in October 2011, ( see Am. Compl. ¶ 49 (Dkt. No. 12)), and the EEOC issued a right-to-sue letter in mid-November, ( see id. ¶ 51). Thereafter, Plaintiff filed an amended complaint against the same four defendants, alleging the previous two labor-law causes of action and adding two new causes of action, one under the Americans with Disabilities Act (" ADA" ) and one under New York's Human Rights Law, alleging that Blackman and OCPG engaged in disability-based discrimination. ( See Am. Compl.)

The Parties completed discovery at the end of 2012. ( See Dkt. No. 25.) In October 2013, Plaintiff and Weinstein informed the Court that they had reached a settlement agreement. ( See Dkt. No. 46.) At those Parties' request, the Court later entered an order dismissing Plaintiff's claims against Weinstein with prejudice. ( See Dkt. No. 59 (entered November 12, 2013).)

Separately, and pursuant to a Motion Scheduling Order the Court adopted at a pre-motion conference held in June 2013, ( see Dkt. No. 39), as modified by subsequent orders granting extension requests, ( see Dkt. Nos. 42-44, 54, 58), Defendants Blackman and OCPG filed a Motion for Summary Judgment and accompanying Memorandum of Law in October 2013, ( see Notice of Motion (Dkt. No. 47); Defs. Blackman Plumbing Supply, L.L.C. and Orange County Plumbing Group, L.L.C.'s Mem. of Law in Supp. of Partial Summ. J. (" Defs.' Mem." ) (Dkt. No. 52)).[5] Plaintiff filed a Memorandum of Law in Opposition to Defendants' Motion in November 2013. ( See Pl.'s Mem. in Opp'n to Defs.' Mot. for Partial Summ. J. (" Pl.'s Mem." ) (Dkt. No. 62).) Defendants filed a Reply Memorandum in December 2013. ( See Defs. Blackman Plumbing Supply, L.L.C. and Orange County Plumbing Group, L.L.C.'s Reply Mem. of Law in Supp. of Partial Summ. J. (" Defs.' Reply" ) (Dkt. No. 66).) Finally, with the Court's permission, ( see Dkt. No. 70), Plaintiff filed a Sur-reply Memorandum shortly thereafter, ( see Pl.'s Sur-reply Mem. in Opp'n to Defs.' Mot. for Partial Summ. J. (" Pl.'s Sur-reply" ) (Dkt. No. 72)). The Court held oral argument on July 24, 2014.

II. Discussion

A. Legal Standard

Summary judgment shall be granted where the movant shows that there is " no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265

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(1986). " When ruling on a summary judgment motion, the district 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." Dall. Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003); see also Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir. 2006). A party seeking summary judgment bears the burden of establishing that no ...

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