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Blundell v. Nihon Kohden America

United States District Court, N.D. New York

January 23, 2017


          LAW OFFICE OF MATTHEW S. PORGES, ESQ. Counsel for Plaintiff


          LEWIS BRISBOIS BISGAARD & SMITH LLP Counsel for Defendant

          PETER T. SHAPIRO, ESQ.


          GLENN T. SUDDABY, Chief United States District Judge

         Currently before the Court, in this employment discrimination action filed by Paul Blundell ("Plaintiff") against Nihon Kohden America ("Defendant" or "NKA"), is Defendant's motion to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 14.) For the reasons set forth below, Defendant's motion is granted in part and denied in part.


         A. Plaintiff's Amended Complaint

         Generally, in his Amended Complaint, Plaintiff alleges as follows. (Dkt. No. 13.)

         1. Plaintiff's Age, Disability, and Employment with NKA

         On May 7, 2013, Plaintiff, 59 years old, participated in a job interview via a Skype call[1]with representatives of NKA, a California corporation authorized to conduct business in New York with a principal place of business in Irvine, California. (Id. at ¶¶ 6, 10, 13.) During the interview, Tyler Lamb, a clinical application specialist ("CAS") with NKA, asked Kenric Thompson ("Thompson"), a manager who also took part in the interview, how old Plaintiff was. (Id. at ¶¶ 13, 16.) Plaintiff was hired and began working for NKA in May 2013 as a CAS with responsibilities "centered on teaching, but also including set up of equipment and on-site technical support." (Id. at ¶ 14.)

         At some point "[a]round the time of his hire, " Plaintiff voluntarily provided his age to Thompson and Monica Kim ("Kim"), then a member of NKA's human resources staff. (Id. at ¶ 16.) Plaintiff also advised Thompson and Kim that he had "nerve damage caused by severe fractures" in his legs and feet. (Id. at ¶¶ 11, 16.) These disabilities substantially limit Plaintiff's "neurological and muscular functioning" as well as his ability to walk, stand, lift, run, and bend. (Id. at ¶ 12.) At the time that he was hired, Plaintiff requested, from Thompson and Kim, reasonable accommodations in the form of sitting while teaching classes. (Id. at ¶ 17.)

         2. October 2013 - Comments by Coworker

         On "multiple occasions" in October 2013, Cynthia Wolk ("Wolk"), Plaintiff's coworker, stated to Plaintiff that his "age and disability made him unable to perform his job." (Id. at ¶ 18.) Plaintiff advised Wolk that he was offended by her comments, "complained to" Thompson and Kim about the comments, and offered to "allow Wolk to take the lead on at least one account . . . to appease Wolk and to make NKA look more united." (Id. at ¶¶ 18-19.) Thompson did not accept Plaintiff's offer and failed to take any other corrective action regarding Wolk's comments. (Id. at ¶ 19.)

         3. December 2013 - Denial of Use of Company Rental Car as a Reasonable Accommodation

         In December 2013, while working on an assignment in Duluth, Minnesota, in temperatures as low as approximately negative 10 degrees Fahrenheit, Plaintiff suffered frostbite, "exacerbat[ing] his disability and ma[king] it more difficult . . . to stand." (Id. at ¶ 20.) The frostbite occurred after Plaintiff was "twice denied use of the company's rental car, " despite the fact that he had (1) informed NKA that he needed the car as a reasonable accommodation, and (2) specifically asked the lead CAS on the assignment for use of the car. (Id.) Plaintiff's similarly situated coworkers were permitted to use the rental car. (Id.)

         4. Other Remarks About Plaintiff's Age and Disability

         During the course of Plaintiff's employment with NKA, "many CAS employees . . . technicians . . . and some contract wire pullers made comments and/or jokes about [Plaintiff's] limp and/or injured leg." (Id. at ¶ 21.) For example, on or around June 2, 2014, a clinical consultant named David called Plaintiff "old and gimpy." (Id.) At some point, Lynn Gustafson, a "senior CAS, " referred to Plaintiff as a "gimp." (Id.) On several other occasions, some of NKA's installers referred to Plaintiff as "the gimp" or "the old gimp." (Id.) Comments about Plaintiff's age and disability were made by a number of his coworkers in various positions with NKA. (Id. at ¶¶ 21-22.) Throughout the course of his employment, Plaintiff complained to Thompson that he was offended by these comments. (Id. at ¶ 22.) Plaintiff also complained about the comments to the "lead CAS" on assignments on which he was the secondary CAS. (Id. at ¶ 26.) However, Thompson (as well as lead CASs to whom Plaintiff complained) "did little or nothing to prevent or stop" the comments or to "penalize" the employees making them. (Id.)

         5. August 2014 - Denial of Skycap Services as a Reasonable Accommodation

         In August 2014, NKA began denying Plaintiff's requests for reimbursement "for skycap services to help him move his bags when he traveled for" NKA. (Id. at ¶ 24.) Plaintiff had advised NKA that he needed skycap services as a reasonable accommodation while traveling. (Id.)

         6. October 2014 - Employee Meeting and Plaintiff's Performance Evaluation

         In October 2014, NKA held a "large employee meeting, " during which Thompson introduced NKA's "gateway security expert, " Mike, as "being over sixty (60) years old." (Id. at ¶ 25.) Many of Plaintiff's fellow employees "verbally indicated displeasure" with Mike's age, and Plaintiff conveyed that he "resented that displeasure." (Id.)

         At some other point in October 2014, Thompson gave Plaintiff a performance evaluation which criticized him "for working 'in the corner sitting in a chair[.]'" (Id. at ¶ 27.) This was "a clear reference to Thompson's distaste for [Plaintiff's] physical inability to stand for periods of time." (Id.) Thompson also "stated" that Plaintiff was required to "make continuous rounds and not sit as" he physically required. (Id.)

         7. March 2015 - Suspension of Plaintiff's Employment

         On or about March 17, 2015, NKA suspended Plaintiff's employment with pay. (Id. at ¶ 29.) The suspension was based on multiple false allegations. (Id.) First, NKA asserted that Plaintiff made "racist comments to [an] African-American woman during a visit with an account." (Id.) In actuality, Plaintiff had no interaction with an African-American woman on the account at issue. (Id.) Second, NKA falsely asserted that Plaintiff "wore improper attire" and had "dirty clothes, " "body odor, " and "bad teeth." (Id.) Notably, NKA terminated Kim in January 2015, approximately two months after she had "circulated a memorandum stating that there was to be no discrimination or retaliation in the work place." (Id. at ¶ 28.)

         8. April 2015 - Termination of Plaintiff's Employment

         After Plaintiff was suspended, NKA's new Human Resources Director, Betzy Estrada ("Estrada"), and a Nurse Executive (and later Vice President for Clinic Excellence Programs), Veffa Devers ("Devers"), began investigating Plaintiff's claims that he had been subjected to discrimination. (Id. at ¶¶ 30-31.) On April 18, 2015, after "spending approximately a month reviewing [Plaintiff's] claims of discrimination, " Devers and Estrada elevated Plaintiff's suspension to a termination of his employment. (Id. at ¶ 31.) Defendant provided "multiple changing and false reasons" for Plaintiff's termination, including alleged "racist comments" that he had made, his "lack of product knowledge, " and "the alleged hygiene and attire issues" that were the (partial) basis for his suspension. (Id. at ¶ 35.) Devers and Estrada also concluded that Plaintiff's claims of discrimination were unsupported and that he "had acted improperly with respect to Wolk, " in contradiction of Plaintiff's earlier complaints about Wolk. (Id. at ¶ 32.)

         9. Plaintiff's Claims

         Based upon the foregoing allegations, Plaintiff appears to assert the following claims, set forth in a single paragraph of his Amended Complaint: (1) a claim for discrimination based on his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., and an identical state law claim pursuant to New York Executive Law § 296; (2) claims for discrimination based on his disability and failure to provide reasonable accommodations, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12111 et seq., and identical state law claims pursuant to New York Executive Law § 296; and (3) claims for retaliation, in violation of the ADEA, ADA, and New York Executive Law § 296. (Id. at ¶ 36.)

         B. Parties' Briefing on Defendant's Motion to Dismiss

         1. Defendant's ...

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