Douglas Parker v. Columbia Pictures IndustriesDouglas Parker v. Columbia Pictures Industries
Affirmed in part, vacated in part and remanded.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
STANLEY N. FUTTERMAN, ESQ., New York, NY, for plaintiff-appellant-cross-appellee.
LAUREN REITER BRODY, Rosenman & Colin LLP, New York, NY, for defendants-appellees.
JOHN F. SUHRE, Washington, D.C., (C. Gregory Stewart, General Counsel, Philip B. Sklover, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel), for Amicus Curiae Equal Employment Opportunity Commission.
Chief Judge Winter dissents in part in a separate opinion.
SOTOMAYOR, Circuit Judge:
Appellant Douglas Parker brought this action claiming that his former employer, Sony Pictures Entertainment, Inc. (“SPE“), discharged him because of his disability in violation of the Americans with Disabilities Act,
On September 4, 1998, the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) granted the defendants’ motion for summary judgment on Parker‘s discriminatory discharge claims and denied Parker‘s cross-motion for leave to amend his complaint. The court denied the motion for summary judgment on Parker‘s other claims, and denied CPI‘s motion for summary judgment on the ground that it was not Parker‘s employer. For the reasons that follow, we vacate the district court‘s grant of summary judgment in favor of SPE on the discriminatory discharge claims, but affirm its denial of Parker‘s cross-motion for leave to amend his complaint. We also affirm the court‘s denial of summary judgment in favor of CPI.
BACKGROUND
In 1993, Douglas Parker began working at SPE‘s Film and Tape Operations facility in Inwood, New York. The Inwood facility prepares and services film and videotape products that are used to create custom-made videotapes for SPE customers. As the Executive Director for Technical Services at that facility, Parker supervised a staff of up to thirty-one employees, attended frequent meetings with his superiors, worked with other facility employees, and monitored his staff‘s work product on videotape equipment located at the facility.
On Thursday, March 16, 1995, Parker injured his back while working at the facility. He returned to work the next day and for part of the following Monday, but then left to seek medical attention. Parker did not return to the Inwood facility, but instead stayed home to recover, and, he claims, to continue performing his job from home via telephone, fax, and e-mail. In mid-May 1995, while still recovering at home, Parker decided to undergo back surgery and informed SPE‘s human resources department that he would be out of work for an extended period of time. SPE then sent Parker a letter confirming his leave of absence and informing him of his rights under the FMLA and under SPE‘s short-term disability plan. According to the company‘s short-term disability policy, Parker was entitled to up to six months’ paid leave. In June 1995, SPE filed an internal Vacation/Absence form listing Parker‘s leave as beginning on March 17, 1995, the day after his accident. Parker claims he did not see this form, and thus did not learn the date on which SPE deemed his leave to have begun, until discovery in this action.
Parker underwent back surgery on May 31, 1995. Over the next three months, pursuant to SPE‘s disability policy, he submitted a series of medical reports to SPE‘s human resources department updating the company on his medical condition. In the first several of these reports, his doctor prescribed “no work” as part of the treatment plan. The final two reports, dated August 24, 1995 and September 8, 1995, omitted this directive, though they did state their findings regarding Parker‘s condition as “unchanged since last visit.” Parker alleges that sometime near the end of August, he spoke to his supervisor, Bill Theis, about returning to work at the Inwood facility on a part-time basis and that Theis agreed to investigate that possibility. On September 11, 1995, however, while Parker was still at home on leave, SPE human resources employee Mary Cipolla informed him that he had exhausted SPE‘s six-month limit on paid leave and that his employment at SPE consequently would be terminated on September 15, 1995. Cipolla advised Parker to apply for additional benefits under SPE‘s long-term disability plan and offered to send him the forms, which he completed on September 13, 1995. Parker subsequently applied for Social Security disability benefits as well. SPE terminated Parker on September 15, 1995.
The defendants moved for summary judgment on all claims, and Parker cross-moved to amend his complaint to add a claim for breach of contract on the ground that the defendants had failed to grant him a full six months’ leave in accordance with SPE‘s short-term disability policy. The district court granted summary judgment to SCOA on all claims and to SPE and CPI on Parker‘s discriminatory discharge claims, but denied summary judgment to both SPE and CPI on Parker‘s retaliation and FMLA claims. The court also denied Parker‘s cross-motion for leave to amend his complaint.
The parties subsequently reached a settlement of Parker‘s retaliation and FMLA claims. Following the entry of a final judgment on January 12, 1995, disposing of all claims, Parker appealed the district court‘s grant of summary judgment on his discriminatory discharge claims and its denial of leave to amend his complaint. CPI cross-appealed the district court‘s decision to deny summary judgment dismissing it from the case, arguing that it was not Parker‘s employer.
DISCUSSION
I. Discriminatory discharge under the Americans with Disabilities Act
The district court granted summary judgment to the defendants on Parker‘s discriminatory discharge claims on the ground that Parker had not made out a prima facie case under the ADA.1 We review this grant of summary judgment de novo. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998). In determining whether summary judgment was appropriate, we must resolve all ambiguities and draw all inferences in favor of the non-moving party, and we will affirm only if the record reveals no genuine issue of material fact for trial. See id.
To establish a prima facie case of discriminatory discharge under the ADA, an employee bears the burden of demonstrating that: 1) he was an “individual who has a disability” within the meaning of the statute; 2) the employer had notice of his disability; 3) he could perform the essential functions of the job with reasonable accommodation; and 4) the employer refused to make such accommodation. See Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997), cert. denied, 118 S. Ct. 1044 (1998). We have ruled that failure to make reasonable accommodation, when the employee has satisfied the first three elements of his claim, amounts to discharge “because of” his disability. See, e.g., Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998). If the plaintiff succeeds in establishing a prima facie case of disability discrimination, the burden shifts to the employer to demonstrate that the employee‘s proposed accommodation would have resulted in undue hardship. See Stone, 118 F.3d at 97.
A. Parker‘s ability to perform the “essential functions” of his job
To satisfy this element of his prima facie case, Parker claimed that if SPE had accommodated his disability by permitting him to work part-time, he would have been capable of returning to his position at the Inwood facility. The district court found, however, that Parker could show no genuine factual dispute on this question, because the physical difficulties Parker described on his applications both for Social Security and for SPE‘s long-term disability benefits prevented him from making his subsequent claim that he could perform the essential functions of his job with reasonable accommodation.
With respect to statements made to the Social Security Administration (“SSA“), the Supreme Court has held that statements made for the purpose of securing disability benefits, describing why the claimant is too disabled to work, do not necessarily bar the disabled individual from claiming in an ADA action that he can perform the essential functions of the job at issue. See Cleveland v. Policy Mgmt. Sys. Corp., 119 S. Ct. 1597, 1602 (1999). Rather, in an ADA case in which the plaintiff has made an earlier claim for Social Security Disability Insurance (“SSDI“), the court must undertake a fact-specific analysis of whether the claims made in the SSDI application directly contradict the allegations made in the ADA context. See id. at 1603. Where a case involves an apparent conflict between the two sets of statements, the plaintiff must offer some explanation for the inconsistency. “To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror‘s concluding that, assuming the truth of, or the plaintiff‘s good faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions’ of the job, with or without ‘reasonable accommodation.‘” Id. at 1604.
The Court in Cleveland applied this analysis to vacate summary judgment where the plaintiff had stated in her SSDI application that she was “unable to work due to [her] disability,” but claimed in her ADA case that she was capable of working with reasonable accommodation. Id. at 1600. Although the plaintiff‘s SSDI forms stated at various points that she had “not been able to work since” her termination from her job, that she was “still disabled,” and that she was “totally disabled,” id. at 1600, 1604, the Court accepted the plaintiff‘s assertion that these statements “were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work.” Id. at 1604 (quoting Pet.‘s Br. at 43). The Court contrasted these statements to those made in the context of an ADA action, which go directly to the question of reasonable accommodation. See id. at 1601 (noting that the ADA was designed “to guarantee [disabled] individuals equal opportunity” to work by requiring that employers make accommodations where appropriate). Given this key contextual difference, the Court found that the plaintiff‘s statements to the SSA regarding her “total disability” did not automatically bar her from claiming that she could perform her job with reasonable accommodation. Rather, the plaintiff deserved a chance to reconcile those statements with her position in the ADA action. The Court accordingly remanded the case so that the parties would “have the opportunity in the trial court to present, or to contest, [the plaintiff‘s] explanations [for the contradiction], in sworn form where appropriate.” Id. at 1604.
Although this case presents a close question, we conclude that Parker‘s statements in his applications for long-term disability and SSDI benefits do not fall within the category of “directly conflicting statements about purely factual matters” that we faced in Mitchell. In his September 13, 1995 application for long-term disability benefits, Parker responded to the question, “Why are you unable to work?” by stating that he was “completely incapacitated - disabled - treatment daily.” Later that month, he stated in his SSDI application that he “ha[d] problems sitting standing and walking for sustained periods; [had] constant pain . . . [and] problems in legs.” Parker also asserted in his SSDI application that he “became unable to work” on March 16, 1995, and that he was “still disabled.” Parker‘s request for long-term benefits was approved on October 10, 1995, although his SSDI claim ultimately was denied.
We agree with the district court insofar as it found an apparent conflict between Parker‘s statements in his benefits applications and his affidavit to the district court, in which Parker claimed that he was capable of returning to work in September 1995 on a gradual or part-time basis. Nonetheless, we find that this facial conflict is not enough to warrant summary judgment in favor of SPE. Reading Parker‘s benefits applications in context, a reasonable juror could find he was in fact capable of performing the essential functions of his job with a reasonable accommodation. As the Supreme Court has noted, “[a]n SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely ‘I am disabled for purposes of the Social Security Act.‘” Cleveland, 119 S. Ct. at 1601. Consequently, Parker‘s statement in his SSDI application that he “became unable to work” in March 1995 and that he was “still disabled” does not dictate the factual conclusion that he was incapable of returning on a part-time basis or with other accommodation.
Furthermore, Parker adequately explained the apparent conflict between his benefits application and his affidavit to the court. Here, as in Cleveland, Parker‘s SSDI statements were made in a forum unconcerned with “the effect that reasonable workplace accommodations,” including part-time employment, “would have on the ability to work.” Id. at 1604. Rather, the application form asked only why he was unable to continue working generally. Given that SPE had informed Parker that he was being terminated because he was unable to return to work upon the expiration of his disability leave, a reasonable jury could find that Parker‘s statements to the SSA constituted an explanation for his termination rather than a description of his actual physical abilities. Accordingly, Parker‘s statements on his application for Social Security benefits do not, as a matter of law, preclude him from showing that with reasonable accommodation, he was capable of performing the essential functions of the job in accordance with the ADA.
We conclude, however, that under Cleveland, Parker‘s explanation for the contradiction is sufficient to survive summary judgment. In his Rule 56.1 statement opposing summary judgment, Parker asserted that he completed the application for long-term benefits “with the understanding that . . . his medical need for continued physical therapy entitled him to long-term disability benefits once he was being denied the opportunity to work, notwithstanding that he felt able to endure the pain and discomfort involved in getting to his former place of employment and was desirous of doing so . . . .” (Emphasis added). Given this explanation, a reasonable jury could find that Parker‘s description of himself as “completely incapacitated - disabled” referred to SPE‘s explanation for terminating him and not to whether he was capable of performing the essential functions of the job with reasonable accommodation.3 In light of Parker‘s proffered explanation for the apparent conflict between his benefits forms and his affidavit in this ADA action, therefore, we find that under Cleveland, his benefits forms do not preclude him from establishing a triable question regarding the “essential functions” element of his prima facie case.
Nor do we agree with the district court that the record as a whole warrants summary judgment. On the contrary, the record reveals a genuine factual dispute as to whether Parker was capable of performing the job with reasonable accommodation when he was terminated in September 1995. First, according to Parker, he told his supervisor in August and September 1995 that he was capable of returning on a part-time basis, a belief he repeated to two nurses working with SPE‘s workers’ compensation program. Second, Parker‘s medical condition at the time of his termination is far from clear. His medical reports ceased prescribing “no work” on August 24, 1995, reporting instead only that his condition was “unchanged.” Moreover, the subsequent reports that omitted the “no work” notation also recommended more aggressive physical therapy, supporting an inference that Parker was ready for a recovery program that could include some work. Furthermore, Parker‘s doctor testified in her deposition that she would have been “delighted” in September 1995 to certify his return to work on a part-time basis. Based on this evidence, a reasonable jury could conclude that any total prohibition on Parker‘s returning to work ended in August 1995, and that he was capable of returning at least on a modified schedule at that time.4 Parker thus has raised a triable issue as to whether, with the temporary accommodation of part-time work,5 he was capable of performing the essential functions of his job at SPE, and summary judgment on this ground was inappropriate.
As an alternative to its “essential functions” analysis, the district court granted summary judgment in favor of SPE because Parker had not established the final element of his prima facie case, i.e., that SPE had terminated him “because of” his disability. In his affidavit opposing SPE‘s summary judgment motion, Parker conceded that there was at least one reason other than his back injury for his discharge: he claimed that his new supervisor, Brunella Lisi, wanted to discharge him so she could hire a more “loyal” employee in his place, and that his disability provided a “convenient means” - i.e., a legitimate excuse - for doing so. According to the district court, Parker‘s allegation that office politics rather than disability discrimination prompted his termination “renders his discriminatory discharge claim meritless.”
The propriety of the district court‘s conclusion on this point involves an issue not yet addressed in this Circuit: the applicability of “mixed-motive” analysis under the ADA. Parker‘s claim that his disability served as an excuse to discharge him alleges a mixed-motive theory of causation, under which disability was one motivating factor in SPE‘s adverse employment action but was not its sole but-for cause. See
The ADA makes it unlawful for an employer to discriminate against a qualified individual “because of the disability of such individual.”
Under this standard of causation, Parker has succeeded in establishing the final element of his prima facie case. Although Parker claimed that his termination resulted from Lisi‘s plan to replace current employees with employees who were loyal “only [to] her,” he also alleged that, among the allegedly disloyal employees, he was singled out for quick termination because of his disability. These allegations are sufficient to satisfy Parker‘s burden of claiming that his disability was a motivating factor in his termination.6 Cf. Baird, 192 F.3d at 469 (reversing dismissal of ADA claim where plaintiff alleged that both disability and absenteeism contributed to her exclusion from school activity); McNely, 99 F.3d at 1070-71, 1077 (finding the ADA applicable where both insubordination and disability played a role in plaintiff‘s termination). Accordingly, the district court erred in concluding that Parker‘s allegations of office politics precluded him from establishing a prima facie case under the ADA.
SPE argues that even if the district court erred in rejecting a mixed-motive analysis, summary judgment was nonetheless appropriate because Parker cannot establish that his disability was even a motivating factor in his termination. Specifically, SPE claims that it fired Parker not because he was disabled, but because he was unable to return to work when his six months’ disability leave expired. Terminating a disabled employee, however, who can perform the essential functions of the job but cannot return to work because the employer has denied his request for reasonable accommodation, is disability discrimination under the ADA. “Failure to consider the possibility of reasonable accommodation for . . . disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d Cir. 1995). A reasonable trier of fact could conclude that SPE‘s decision to terminate Parker falls within this category. The record includes evidence that SPE declined to consider Parker‘s proposal of part-time work, despite his request for such an accommodation in August 1995 and again immediately following his termination in September. Although SPE claims that Parker was not medically cleared for work at that time, his medical reports no longer prescribed “no work,” suggesting at least the possibility that Parker had recovered enough to resume his duties with some accommodation. Moreover, the record suggests that the company did nothing following Parker‘s request to ascertain his ability to work, nor did it inform him that his perceived physical infirmity was the main obstacle to his return. Rather, SPE ignored his request, apparently concluded that he was wholly disabled, and terminated him upon exhaustion of his leave benefits.
Because the district court concluded that Parker did not establish a prima facie case of disability discrimination, it did not reach the question of whether the accommodation of part-time work would have resulted in undue hardship. See Stone, 118 F.3d at 96-97 (discussing order of proof in ADA cases). We therefore do not consider this issue on appeal. Rather, we vacate the grant of summary judgment and remand the case for a determination of whether Parker has created a triable question of fact on the remaining elements of his ADA claim.
II. Parker‘s motion for leave to amend the complaint
Parker claims that the district court abused its discretion in denying him leave to amend his complaint to add a breach of contract claim. The court denied Parker‘s request on the grounds that it was both futile and untimely, finding that Parker had alleged no facts to support a breach of contract claim and that, in any event, the request did not comply with the schedule the court had set for proceedings in the case. We find that the court erred in characterizing Parker‘s request as futile, but that it did not abuse its discretion in denying the request on the basis of untimeliness.
A. Futility
Leave to amend a complaint “shall be freely given when justice so requires.”
Under New York law, an employer‘s virtually unfettered power to terminate an at-will employee does not negate its duty to abide by promises made prior to termination. See Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1196 (2d Cir. 1989). In Leonelli, we rejected a defendant‘s argument that because the plaintiff was an at-will employee, he could not state a breach of contract claim for denial of benefits. See id. at 1198. On the contrary, we found that a company benefits plan may constitute a binding promise regardless of the employee‘s status. See id. at 1198 (“Obviously, the fact that [the plaintiff] was an employee at will, subject to discharge anytime, does not relieve [the defendant] of the obligation of dealing fairly with its employees and of living up to its promise to pay limited benefits to such employee when he is incapacitated or ill.“). Similarly, under the benefits plan at issue in this case, Parker‘s salary and length of service entitled him to six months’ leave, which would take the form of “salary continuation benefits.” Parker‘s at-will status would not alter that entitlement.
Regardless of the merits of Parker‘s breach of contract claim, the district court did not abuse its discretion in denying Parker‘s motion on the ground that the motion was brought after the court-ordered deadline for amending the pleadings. Our conclusion on this point involves analysis of two of the Federal Rules of Civil Procedure:
According to
Several circuits have ruled that the
In this case, the district court held that Parker had “not demonstrated cause for his failure to comply with the Court‘s deadline.” We treat this holding as an explicit “good cause” determination under
III. CPI‘s motion for summary judgment
Although we find that the district court erred in granting summary judgment to SPE on Parker‘s discrimination claims, we affirm its denial of summary judgment in favor of CPI.7 The record reveals a genuine issue of material fact regarding whether CPI acted as Parker‘s “employer” so as to render CPI liable to Parker in this discrimination action.
To prevail in an employment action against a defendant who is not the plaintiff‘s direct employer, the plaintiff must establish that the defendant is part of an “integrated enterprise” with the employer, thus making one liable for the illegal acts of the other. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995) (discussing standards of civil rights liability in the parent-subsidiary context); cf. Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747-48 (2d Cir. 1996) (applying “integrated enterprise” test to determine which parties were bound by a collective bargaining agreement). The employee satisfies this rule if he shows participation by the defendant that is “‘sufficient and necessary to the total employment process [of the employer], even absent total control or ultimate authority over hiring decisions.‘” Cook, 69 F.3d at 1241 (quoting Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir. 1983)). A crucial element of the inquiry focuses on whether the two enterprises exhibit “centralized control of labor relations,” including tasks such as handling job applications, approving personnel status reports, and exercising veto power over major employment decisions. Id.
CONCLUSION
For the foregoing reasons, we vacate the district court‘s grant of summary judgment in favor of SPE on Parker‘s claims of disability discrimination, affirm its denial of summary judgment to CPI on these claims, and remand these issues for further proceedings. We affirm the court‘s denial of Parker‘s motion for leave to amend his complaint.
WINTER, Chief Judge, dissenting from majority opinion:
Respectfully, I disagree with my colleagues as to whether Parker established a prima facie case of discriminatory discharge under the ADA. I therefore dissent.
The ADA prohibits employers from discriminating “against a qualified individual with a disability because of the disability.”
My colleagues conclude that summary judgment was inappropriate because a genuine issue of material fact exists “as to whether, with the temporary accommodation of part-time work, [Parker] was capable of performing the essential functions of his job at SPE.” I disagree.
In my view, the record is clear that when Parker‘s employment was terminated, he was not capable of performing any work, or at least that SPE reasonably believed him to be incapacitated. The doctor‘s reports, Parker‘s statements on disability applications, the failure to get clearance from his doctor to return part-time, and his own testimony are all consistent on this point. The doctor‘s report of July 27, 1995 stated “no work.” An August 23, 1995 “update” also stated “no work.” The next day, the doctor stated simply that his condition was “unchanged,” a conclusion thereafter repeated on all pertinent occasions. Even though a medical condition and availability to work are different things, when a medical condition renders an employee totally incapacitated, a reported lack of any change in that condition must be regarded by an employer as continued incapacity.
Moreover, Parker‘s statements on his disability applications indicated that he could not perform his job and are consistent with the doctor‘s reports. Even if these statements do not bar his claim as a matter of law if explained by other evidence, there is no such other evidence.
SPE had a policy that required employees who had been absent from work for medical reasons to provide clearance from their doctors before returning to work. This is a policy that is as protective of workers as of employers. The policy required a doctor‘s note for absences of more than five consecutive workdays. Each note was to include an expected date of return. If an employee was unable to return on the expected date, a new note was to be submitted before that date. Parker never submitted a note from a doctor clearing his return to work on any particular date or on any basis, an omission, again, consistent only with “no work.” Given SPE‘s written policy, it was not SPE‘s burden to contact Parker‘s doctor to ask for clearance or to cross-examine her on the meaning of “condition unchanged,” a conclusion she repeated after Parker had proposed a return to part-time work.
Indeed, there can be no claim in this case that Parker was cleared by his doctor for a return to part-time work at SPE. In his deposition, immediately after describing the August 1995 conversation with Bill Theis concerning such a return, Parker testified:
Q. In the later part of August, when you had this conversation with Bill Theis, had your doctors approved your returning to work?
A. Not at that point, no.
Moreover, Parker did not testify that he was cleared to work in any of the four succeeding months. Indeed, by his own testimony, he was not cleared to work until January 1996, months after his termination.
I believe that an employer may lawfully require an employee who misses work because of an incapacity to perform a job to provide medical clearance before returning to that job, or to a job modified by a reasonable accommodation. I see nothing in the ADA that prevents an employer from imposing such a requirement and from terminating an employee who does not provide such written clearance even if the employee has suggested an accommodation. Indeed, how else is an employer to evaluate whether an accommodation is needed or whether a request for a particular accommodation is reasonable.1-1
I therefore dissent.
Notes
Moreover, although Parker did benefit from his earlier statements in applying for long-term disability benefits, those statements do not present the same irreconcilable conflict with his ADA claim that we faced in Mitchell. See id. On the contrary, Parker‘s explanation for the apparent conflict is sufficient to survive summary judgment. See supra. Parker‘s long-term disability application therefore does not constitute an “inconsistent position [taken] in an earlier proceeding” for purposes of judicial estoppel under Mitchell. See id. at 7 (internal quotation marks and citation omitted).