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Watson v. Emblem Health Services

Supreme Court of New York, First Department

January 9, 2018

Suzette Watson, Plaintiff-Appellant,
v.
Emblem Health Services, Defendant-Respondent.

         Plaintiff appeals from the order of the Supreme Court, New York County (David B. Cohen, J.), entered on or about July 8, 2016, which granted defendant's motion for summary judgment dismissing the complaint.

          Tuckner, Sipser, Weinstock & Sipser, LLP, New York (William J. Sipser of counsel), for appellant.

          Cozen O'Connor, New York (Michael C. Schmidt of counsel), for respondent.

          David Friedman, J.P. Peter Tom Richard T. Andrias Ellen Gesmer, JJ.

          ANDRIAS, J.

         Plaintiff alleges that defendant terminated her employment because of her disability in violation of the New York City Human Rights Law (NYCHRL) (Administrative Code of the City of New York § 8-107[1][a]). Supreme Court granted defendant's motion for summary judgment dismissing the complaint, finding that there was no evidentiary route that could allow a jury to find that discrimination played a role in plaintiff's termination. However, giving plaintiff the benefit of all favorable inferences which may reasonably be drawn, we conclude that she proffered sufficient evidence to raise a triable issue of fact as to whether the reason put forth by defendant for terminating her employment was merely pretextual and that the grant of summary judgment in defendant's favor was not warranted.

         In 2005, plaintiff began working with defendant's predecessor as a marketing supervisor and was later promoted to marketing manager. In 2009, she was diagnosed with a brain tumor, underwent surgery and returned to work four months later, ahead of the six month to one year's convalescence recommended by her treating physician.

         In June 2011, plaintiff experienced a relapse and recurrence of cerebral tumors, which caused her to suffer migraine headaches and vertigo. On June 6, 2011, she informed defendant that she would be out sick due to this condition. On June 20, 2011, plaintiff's family brought plaintiff and her children to their home in Trinidad so that they could assist her and take care of the children until she recovered. That day, plaintiff's doctor also issued a note stating that she would need additional medical leave until July 10, 2011, which was faxed to defendant on June 28.

         On July 8, 2011, one of plaintiff's supervisors contacted defendant's human resources (H.R.) department about how to carry plaintiff's time. In response to the supervisor's email of that date, plaintiff called and informed him that she was recovering in Trinidad, and that she could not return to work by July 10.

         The supervisor told plaintiff to contact defendant's H.R. benefits analyst. Plaintiff complied, and the analyst told her that due to the length and nature of her absence, she needed to file a claim for short-term disability leave with defendant's disability and leave claims administrator, the Hartford, so that it could verify with her doctor the nature of her medical condition, and confirm or deny her disability leave claim.

         Following these instructions, plaintiff called the Hartford's domestic toll free number, but could not get through because she was calling from Trinidad. Plaintiff then called a friend in the United States, who initiated a three-way call with the Hartford so that plaintiff could file her claim. However, plaintiff did not have all of the necessary information at hand and the Hartford told her that she could call back later to initiate a claim seeking retroactive benefits, and then have 15 days to submit supporting documentation.

         On July 18, 2011, defendant's lead employee relations specialist sent plaintiff a letter terminating her employment, effective that date. The letter stated cryptically:

         "A review of our attendance records indicate that you have been out on an unapproved leave since July 1, 2011. To date you have not contacted Hartford's Short-Term Disability and FML unit to file a claim. After careful review a decision has been made to terminate your employment effective July 18, 2011. You may still contact Hartford to file a disability claim on your own."

         Upon her return to the United States at the end of July, plaintiff received the termination letter and contacted the lead employee relations specialist. Plaintiff informed the specialist that she wanted to be reinstated and to return to work and was told that she had been terminated for failing to file a disability claim as instructed. At the specialist's suggestion, plaintiff submitted doctor's notes dated June 3, 2011 and August 3, 2011, and a letter explaining what happened. Plaintiff also submitted a Family and Medical Leave Act (FMLA) claim on August 3, 2011, which the Hartford approved on August 15, 2011, for the period commencing on June 20, 2011 until July 20, 2011. Nevertheless, defendant refused ...


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