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Bien-Aime v. Equity Residential

United States District Court, S.D. New York

February 22, 2017

SPENCER BIEN-AIME, Plaintiff,
v.
EQUITY RESIDENTIAL; MR. RUDY SEC; AND MS. ANJE, Defendants.

          OPINION & ORDER

          VALERIE CAPRONI, United States District Judge.

         In this 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.[1]Notice of Motion for Summary Judgment, Dkt. 31. For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.

         FACTUAL AND PROCEDURAL BACKGROUND[2]

         From 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.[3] 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.

         In 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. at 119:1-15.

         Sec 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 118:10-13, 119:16-19.

         In 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.

         Bien-Aime 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.[4] Pl. Tr. at 139:20-143:17; Sec Decl. ¶ 9.

         Bien-Aime 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.

         In May 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.[5] 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.

         In 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.[6]

         DISCUSSION

         Summary 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) (alteration omitted)).

         The 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).

         In the 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)).

         “It 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)).

         I. NYSHRL ...


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