United States District Court, S.D. New York
OPINION & ORDER
VALERIE CAPRONI, United States District Judge.
employment discrimination action, Plaintiff Spencer
Bien-Aime, proceeding pro se, alleges violations of
the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12112 et
seq., New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law §§ 290
et seq., and New York City Human Rights Law
(“NYCHRL”), N.Y. City Admin. Code §§ 8
et seq. Defendants Equity Residential Services, LLC
(“Equity”), Rudolf Sec (“Sec”), and
Antjie Eichinger (“Eichinger”) (collectively,
“Defendants”) move for summary
judgment.Notice of Motion for Summary Judgment, Dkt.
31. For the following reasons, Defendants' motion is
GRANTED in part and DENIED in part.
AND PROCEDURAL BACKGROUND
February 2013 until May 2014, Bien-Aime worked for Equity as
a groundskeeper/porter at the Westmont, a residential
apartment building in Manhattan. Declaration of Ivan R.
Novich, Esq., in Support of Defendants' Motion for
Summary Judgment (“Novich”), Ex. A (“Pl.
Tr.”) at 92:2-8, Dkt. 33; Novich Ex. B at D-0001,
D-0005; Declaration of Rudolf Sec (“Sec Decl.”)
¶ 3, Dkt. 34. The groundskeeper position requires an
“[a]bility to perform numerous physical activities that
require considerable use of [the employee's] hands, arms
and legs and moving [the employee's] whole body,
including . . . kneeling.” Novich Ex. B. at
D-0006. While he was employed at the Westmont,
Bien-Aime reported to Sec, who was the Superintendent at the
Westmont. Pl. Tr. at 104:17-25; see Sec. Decl.
¶¶ 1, 3. Sec, in turn, reported to Eichinger, who
was the General Manager at the Westmont. Pl. Tr. at
106:22-24; Sec Decl. ¶ 2.
February 2014, Bien-Aime's knees became visibly swollen.
Pl. Tr. at 109:16-17, 110:3-11. At the time, Bien-Aime did
not provide Equity with any medical documentation regarding
his knees, nor did Bien-Aime request any accommodation. Pl.
Tr. at 110:20-111:1. Although Sec and Eichinger did not
prohibit Bien-Aime's use of a knee brace prescribed by
his doctor, Bien-Aime did not wear the brace at work. Pl. Tr.
provided Bien-Aime with a pair of knee pads. Pl. Tr. at
110:14-16, 123:10-13. Bien-Aime wore the knee pads even while
he was not working on his knees because they alleviated his
pain. Pl. Tr. at 110:16-19. Because the knee pads were
“old” and “dirty” and Sec received at
least one tenant complaint regarding Bien-Aime's
appearance, Sec asked Bien-Aime to wear the knee pads only
when he was working on his knees or to wear the new, clean
pair of knee pads that Equity had provided him. Sec Decl.
¶ 5. Bien-Aime explained to Sec and Eichinger that the
knee pads helped to alleviate his pain even if he was not
kneeling. Pl. Tr. at 116:22-118:11. Although Plaintiff
testified that Eichinger and Sec threatened to write him up
and fire him if he continued to wear the old knee pads, he
admitted that they allowed him to wear knee pads while
performing tasks that required kneeling. Pl. Tr. at
April 2014, Bien-Aime filed a complaint with the New York
State Division of Human Rights (“NYSDHR”),
alleging disability discrimination in violation of the
NYSHRL. Novich Ex. E at D-0045. Bien-Aime alleged that Equity
discriminated against him when Sec and Eichinger told him
that he could not wear the knee pads. Novich Ex. E at D-0046.
After receiving notice of the NYSDHR complaint, Sarah Khu,
Equity's Human Resources Director, informed Bien-Aime
that he could continue wearing the knee pads and that Sec and
Eichinger had a new pair of the same knee pads for
Bien-Aime's use. Novich Ex. F; Pl. Tr. at 121:11- 123:13.
Khu clarified that Bien-Aime was not expected to kneel while
cleaning apartments, and Sec and Eichinger provided Bien-Aime
with tips on cleaning methods that did not involve kneeling.
Novich Ex. F.; Pl. Tr. at 124:10-125:1. Moreover, Equity
reassigned the task of cleaning of the building's
elevator tracks, which required kneeling, from Bien-Aime to
another employee. Novich Ex. F; Pl. Tr. at 124:5-9.
asserts that Eichinger and Sec retaliated against him for
filing the NYSDHR complaint. Pl. Tr. at 137:17-138:2,
138:18-25. As evidence of retaliatory conduct, Bien-Aime
states that Eichinger “stopped saying good
morning” to him and that Sec talked to Bien-Aime
“totally differently” and without a “warm
welcome” in his voice. Pl. Tr. at 143:18-144:22,
147:17-148:1, 157:2-8. When asked for a specific example of
Sec's retaliatory conduct, Bien-Aime stated that Sec
wrote Bien-Aime a work-assignment order and gave the order to
a co-worker to give to Bien-Aime. Pl. Tr. at 146:17-147:12.
Sec also “wanted to know every minute where [Bien-Aime]
was, ” even though Sec previously had not monitored
Bien-Aime's work that closely. Pl. Tr. at 139:7-8,
144:4-5, 152:19-153:1. Sec also spoke with Bien-Aime about
two instances in which Bien-Aime incurred 15 minutes of
overtime without Sec's prior approval, but he did not
discipline Bien-Aime for working overtime. Pl. Tr. at
139:20-143:17; Sec Decl. ¶ 9.
testified that after he filed the NYSHDR complaint, Sec and
Eichinger “talked to [him] like [he] was a
criminal.” Pl. Tr. at 177:22-24. During that particular
conversation, Sec told Bien-Aime that he had reworked the
schedule to reassign job responsibilities that required
kneeling to other employees in light of Bien-Amie's knee
problems. Pl. Tr. at 150:14-15, 151:11-20, 177:21-179:10.
Bien-Aime asserts that Sec and Eichinger were looking for
“an excuse to fire [him].” August 8, 2016, Letter
(“Opposition” or “Opp.”), at 2, Dkt.
37. The undisputed record reflects, however, that Bien-Aime
was not fired, his schedule was not restructured, and his
hours, benefits, job title, and pay at Equity did not change.
Pl. Tr. at 151:5-7, 157:9-21. In May 2014, Bien-Aime filed a
second complaint with the NYSHDR, this time alleging
retaliation. Novich Ex. G.
2014, Bien-Aime took a voluntary leave of absence. Pl. Tr. at
92:6-18; Sec Decl. ¶ 10. Bien-Aime's doctor provided
Equity with a note stating that Bien-Aime was
“experiencing severe pain” in performing tasks
that required kneeling and opining that Bien-Aime
“should not return to work at this time.” Novich
Ex. K. Bien-Aime was given 12 weeks of Family Leave Medical
Act (“FMLA”) leave. Pl. Tr. at 158:12-16; Novich
Ex. L. After Bien-Aime's FMLA leave expired, Equity
voluntarily extended his leave for more than two years. Pl.
Tr. at 159:1-11. Bien-Aime still is “not able to
work” because of the pain in his knees. Pl. Tr. at
159:18-22, 161:15-17. Bien-Aime has not returned to work at
Equity, nor has he sought other employment. Pl. Tr. at
160:19-161:17. To date, Bien-Aime remains an employee at
Equity, albeit on a leave of absence. Pl. Tr. at 158:17-22.
October 2014, the NYSDHR dismissed Bien-Aime's first
NYSDHR complaint, finding that there was not probable cause
to believe that Equity had discriminated against him. Novich
Ex. I. The next month, the NYSDHR dismissed the second NYSDHR
complaint, finding that there was not probable cause to
believe that Equity had retaliated against Bien-Aime for
filing a complaint with the NYSDHR. Novich Ex. J. Bien-Aime
did not appeal either of the NYSDHR's “No Probable
Cause” determinations. Instead, after receiving
right-to-sue letters, Bien-Aime filed this federal action.
Asserting claims under the ADA, NYSHRL, and NYCHRL, Bien-Aime
alleges that Equity discriminated against him by failing to
accommodate his disability and retaliated against him for
complaining about the discrimination. Complaint for
Employment Discrimination (“Compl.”), at 2-3,
Dkt. 2. Defendants move for summary judgment.
judgment is appropriate when “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 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine
issue for trial.” Scott v. Harris, 550 U.S.
372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(internal quotation marks omitted)). Courts “construe
the facts in the light most favorable to the non-moving party
and resolve all ambiguities and draw all reasonable
inferences against the movant.” Delaney v. Bank of
Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per
curiam) (quoting Aulicino v. N.Y.C. Dep't of
Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009)
non-moving party, however, “must do more than simply
show that there is some metaphysical doubt as to the material
facts” and “may not rely on conclusory
allegations or unsubstantiated speculation.”
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d
Cir. 2005) (citations and internal quotation marks omitted).
Rather, the nonmoving party must come forward with
“specific facts showing that there is a genuine issue
for trial.” Sista v. CDC IXIS N. Am., Inc.,
445 F.3d 161, 169 (2d Cir. 2006) (citation omitted).
“[I]f the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, ” a motion
for summary judgment must be denied. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
context of employment discrimination cases, the Second
Circuit has noted that “an extra measure of caution is
merited” when considering a motion for summary judgment
“because direct evidence of discriminatory intent is
rare and such intent often must be inferred from
circumstantial evidence found in affidavits and
depositions.” Schiano v. Quality Payroll Sys.,
Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation
omitted). Nonetheless, it is “beyond cavil that To the
extent Bien-Aime is attempting to now allege race or age
discrimination, it is simply too late. Bien-Aime cannot raise
new claims on summary judgment that were disclaimed during
discovery. See Enzo Biochem, Inc. v. Amersham PLC,
981 F.Supp.2d 217, 223 (S.D.N.Y. 2013). summary judgment 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), and
“trial courts should not ‘treat discrimination
differently from other ultimate questions of
fact.'” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 148 (2000) (quoting St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524
(1993)). Thus, summary judgment remains available in cases
alleging employment discrimination if there are no genuine
issues of material fact. Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 40 (2d Cir. 1994). And, even in the
employment discrimination context, a plaintiff must do more
than advance conclusory allegations to defeat a motion for
summary judgment. Aspilaire v. Wyeth Pharm., Inc.,
612 F.Supp.2d 289, 302 (S.D.N.Y. 2009) (citing Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)).
is well established that the submissions of a pro se
litigant must be construed liberally and interpreted to raise
the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (emphasis in original) (internal quotation
marks and citation omitted). Courts are required to give
pro se submissions “special solicitude,
” Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.
1994), because “[i]mplicit in the right of
self-representation is an obligation on the part of the court
to make reasonable allowances to protect pro se
litigants from inadvertent forfeiture of important rights
because of their lack of legal training.”
Triestman, 470 F.3d at 475 (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).