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.
O'Connor, New York (Michael C. Schmidt of counsel), for
Friedman, J.P. Peter Tom Richard T. Andrias Ellen Gesmer, JJ.
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[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.
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.
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.
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.
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.
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.
18, 2011, defendant's lead employee relations specialist
sent plaintiff a letter terminating her employment, effective
that date. The letter stated cryptically:
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."
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 ...