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Fatcheric v. Bartech Group, Inc.

United States District Court, S.D. New York

July 19, 2017

THE BARTECH GROUP, INC., and DAWNETTE COOKE, in her individual capacity, Defendants.

          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge:

         Plaintiff Margretta Fatcheric brings this employment discrimination action against her former employer The Bartech Group, Inc. (“Bartech”) and former supervisor Dawnette Cooke (collectively, “Defendants”), alleging unlawful termination based on her disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 296 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107 et seq. Defendants move for summary judgment dismissing this action. For the reasons that follow, Defendants' motion is denied.


         Fatcheric worked as a Program Director at Bartech from March 2014 to January 2015. Bartech provides staffing to clients for functions, such as procurement, finance, and human resources. (Defendants' Statement of Material Facts (“DSMOF”), ECF No. 56 at ¶ 1.) Bartech's Program Directors manage client relationships and oversee service-delivery consultants. (DSOMF ¶¶ 2-3.) The Program Director job description does not indicate that working on-site is a requirement of the position, but allows that Program Directors should build “subject matter expertise within . . . the client's environment.” (March 6, 2017 Declaration of Joanne (“Seltzer Decl.”), ECF No. 57, Ex. R.) On-site expectations for Program Directors depend on client needs-some work on-site every day, others work on-site two or three times per week. (DSMOF ¶ 3.)

         In March 2014, Fatcheric applied to be the Program Director for Citicorp North America, Inc. (“Citi”). (DSMOF ¶ 2.) The position became available because her predecessor abandoned his post. (April 7, 2017 Declaration of Russell Wheeler (“Wheeler Decl.”), ECF No. 59, Ex. 2 at 36.) Fatcheric interviewed for the position with Cooke, who would be her supervisor, and discussed a weekly schedule for the position. (DSMOF ¶ 7.) Initially, Cooke proposed a schedule in which Fatcheric would work three days per week on-site at Citi and two days per week remotely. (DSMOF ¶ 7; Seltzer Decl., Ex. D, at 1.) However, Fatcheric testified that Cooke also discussed the possibility that the on-site requirement could be reduced or eliminated. (Wheeler Decl., Ex. 4, at 36.) Cooke's notes, indicating that they discussed “adjust[ing]” the “on-site demand” and about working “remote 5 days a week, ” appear to corroborate Fatcheric's testimony. (Seltzer Decl., Ex. D, at 2, 4.) Internal, post-interview emails also confirm those discussions, indicating that Fatcheric would be on-site “3 days per week and maybe not always even that.” (Wheeler Decl., Ex. 3, at 5.)

         When Fatcheric commenced her employment, she commuted to Citi's office in Manhattan three days per week. (DSMOF ¶ 8.) Her primary contacts at Citi were Robb Walton and Janine Battaglia. (DSMOF ¶ 8.)

         In April 2014, Fatcheric fell on her way to work, injuring her foot and knee. (DSMOF ¶¶ 10-11.) As a result, she was unable to commute to work and eventually required surgery. (DSMOF ¶ 11.) Initially, Fatcheric refrained from telling Walton about her injury out of fear that he would be “very upset” with her inability to work on-site. (DSMOF ¶ 11.) This concern may have been premised on the fact that Walton wanted Fatcheric to be on-site until her remote access was available. (DSMOF ¶ 10.) In fact, shortly after the injury, Cooke emailed her supervisor, Brian Salkowski, explaining that Walton and Battaglia wanted Fatcheric replaced if she was out “much beyond this week.” (DSMOF ¶ 12.) Cooke opined that Citi's low tolerance was due to the events surrounding the termination of Fatcheric's predecessor. (Seltzer Decl., Ex. I.) Once Fatcheric's remote access was configured, she worked exclusively off-site until June 2014, when she returned to her original schedule. (DSMOF ¶ 13; Fatcheric Decl., ¶ 18.)

         In August 2014, Fatcheric injured her other knee, which prohibited her from working on-site until November 2014. (DSMOF ¶¶ 14-15.) During that period, the relationship between Bartech and Citi was strained. (DSMOF ¶ 16.) As Fatcheric acknowledged, she was not “100% . . . effective.” (DSMOF ¶ 16.) Citi characterized her work as “sloppy” and Fatcheric responded with a “multi page diatribe” to the client that her Bartech supervisors regarded as unprofessional. (DSMOF ¶ 16.) Then in November, Fatcheric had to “scramble” to prepare a client presentation and was reminded by Cooke that she needed to prepare her presentations in advance. (DSMOF ¶ 19.)

         In December 2014, Fatcheric sustained a third injury on her way to work. (DSMOF ¶ 20.) On December 9, Fatcheric informed Bartech and Citi that she would be out for the remainder of the week and possibly the following week due to her injury. (DSMOF ¶ 23.) When Battaglia learned of this absence, she told Cooke, “I think we do need to make a change. I haven't spoken to [Walton] yet….. but let's chat on Friday.” (Plaintiff's Statement of Material Facts (“PSOMF”), ECF No. 58, ¶ 39.) That same day, Cooke recommended to Salkowski that Fatcheric be terminated. (DSOMF ¶ 24; PSOMF ¶ 40.) Salkowski authorized Fatcheric's termination that day, but the decision was not communicated to Fatcheric for several weeks. (PSOMF ¶ 40.)

         In the interim, Fatcheric provided Bartech with updates on her condition. (PSOMF ¶ 47; e.g., Wheeler Decl., Ex. 18.) Cooke encouraged Fatcheric to use the time to recover and not force an early return to work. (PSOMF ¶ 44 (“I have you off all week - so, use that time!”).) On December 29, 2014, Fatcheric informed Cooke that she intended to return to work on January 5, 2015. (DSOMF ¶ 21; Wheeler Decl. Ex. 5.) She made this decision despite her doctors' recommendation that she should not commute. (DSOMF ¶¶ 21, 22.) According to Fatcheric, she intended to build her on-site presence back up to three days per week. (PSOMF ¶ 51.)

         On January 5, 2015, Cooke terminated Fatcheric. (DSOMF ¶ 25.) After Fatcheric's termination, Bartech assigned an employee working at its Michigan headquarters as a short-term replacement Program Director. (DSOMF ¶ 25.) Bartech required that employee to commute from Michigan to New York and Florida as part of her Program Director responsibilities at Citi. (DSOMF ¶ 30.)

         Shortly after her termination, Fatcheric contacted her short-term disability benefits provider to inform them that she was not ready to return to work. (DSOMF ¶ 28.) She remained incapable of commuting or performing on-site work until at least April 2015. (DSOMF ¶ 29.)


         Summary judgment is appropriate only where all of the submissions taken together “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In making that determination, the Court must “construe all evidence in the light most favorable to the nonmoving ...

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