51 F. Supp. 3d 289 | S.D.N.Y. | 2014
OPINION AND ORDER
Plaintiff Gene Lewis filed the instant Complaint against Defendants Blackman Plumbing Supply L.L.C.; Orange County Plumbing Group, L.L.C.; Ridgewood Corp.; and Jules M. Weinstein, alleging multiple counts under federal and state law arising out of Plaintiffs employment relationship with Defendants. Before the Court is Defendants Blackman Plumbing Supply L.L.C. and Orange County Plumbing Group, L.L.C.’s (“Defendants”) Motion for Summary Judgment. For the following reasons, the Court grants Defendants’ Motion in part and denies it in part.
I. Background
A. Factual History
Plaintiff, currently in his sixties, was diagnosed with bone deterioration in his hip in May 2006. {See Def. Blackman Plumbing’s Statement of Material Facts (“Defs.’ 56.1 Statement”) ¶ 14 (Dkt. No. 48).) At that time, he worked for Defendant Ridgewood Corp. (“Ridgewood”) — a commercial provider of plumbing supplies — where he was an assistant manager at Ridgewood’s Middletown, NY branch. {See id. ¶ 7.) After receiving his diagnosis, Plaintiff informed the Middletown branch manager, Richard Robinson (“Robinson”), that he “suffered from a disability” and that he “would eventually need to have [his] hip replaced.” {See Pl.’s Local Rule 56.1 Statement (“Pl.’s 56.1 Statement”) ¶ 16 (Dkt. No. 63).) He also submitted to Robinson a doctor’s note confirming this information, and he told Robinson at that time that “he was having difficulty lifting things.” {Id.; see also Aff. of Gene Lewis (“Pl.’s Aff.”) Ex. 1 (Dkt. No. 61) (doctor’s note describing Plaintiffs diagnosis, dated May 22, 2006).) Robinson responded that “he would ‘put [the doctor’s note] on file.’ ” (See PL’s 56.1 Statement ¶ 16.)
“Almost immediately” after informing Robinson of his diagnosis, “Robinson’s treatment of Plaintiff changed for the worse.” (Id.) Specifically, Robinson began “watch[ing] Plaintiffs movements more vigilantly”; “calling] upon Plaintiff with even more frequency to do the order picking from the warehouse, especially when it involved very heavy objects”; “requiring Plaintiff to pick orders without regard to the weight limitations”; and “not allowing Plaintiff to use the picker when picking orders in the warehouse,” but instead “requiring] [Plaintiff] to use a hand truck.” (Id. ¶ 12.)
In the fall of 2009, Plaintiff was transferred from the Middletown branch to a branch located in Newburgh, NY. (See id. ¶ 21.) With Robinson remaining at the Middletown branch, Plaintiff was relieved that he “was no longer subject to Robinson’s unrelenting ridicule and criticism[.]” (Id. ¶ 22.) Moreover, although Plaintiff “was still called upon to perform tasks that required [him] to lift in excess of 25 poundsf,]” Plaintiff alleges that this happened “far less often” than at the Middle-town branch, and that the Newburgh branch management made “at least some efforts ... to provide the ... accommodations” that his doctor had previously ordered. (Id.) Specifically, Plaintiff “received help” with lifting tasks “each and every time he asked for [it],” and “when he could not do the task,” the Newburgh branch management “understood, showed compassionf,] and assigned the task to someone else.” (PL’s 56.1 Statement ¶ 30.)
In 2010, Ridgewood filed for bankruptcy protection. (See Defs.’ 56.1 Statement ¶ 96.) Thereafter, a bankruptcy court issued an order allowing Ridgewood “to sell substantially all of its assets to Sovereign Bank, a secured party with loans” on which Ridgewood had defaulted. (Aff. of Diane C. Nardone in Supp. of Partial Summ. J. (“Nardone Aff.”) ¶ 4 (Dkt. No. 51); see also Nardone Aff. Ex. K (bankruptcy court order, dated July 16, 2010).) As part of the bankruptcy reorganization, Defendant Blackman Plumbing Supply, L.L.C. (“Blackman”), acting through two of its wholly owned subsidiaries (Defendant Orange County Plumbing Group, L.L.C. (“OCPG”) and non-party New Jersey Plumbing Group, L.L.C. (“NJPG”)), purchased many of Ridgewood’s assets— such as facilities leases and customer data — from Sovereign Bank. (See Nardone Aff. ¶ 5; Defs.’ 56.1 Statement ¶ 97; see also Nardone Aff. Ex. L (“Secured Party Sale and Disposition Agreement,” entered into between OCPG, Sovereign Bank, and Ridgewood); Nardone Aff. Ex. M (“Bill of Sale,” entered into between NJPG, Sovereign Bank, and Ridgewood).)
Blackman thereafter “took over operation of the [Ridgewood] stores,” including the Newburgh branch. (PL’s Aff. ¶ 23; see also PL’s 56.1 Statement ¶¶ 152-53 (alleging that “[t]here was no interruption in the operation of the business as it changed ownership to Defendants,” and that “De
In April 2011, Blackman told Plaintiff that it was closing the Newburgh branch and that it would transfer Plaintiff back to the Middletown branch, where Robinson remained the manager. (See id. ¶ 26.) “Terrif[ied]” about the prospect of working under Robinson’s supervision, and cognizant that his disability was “worsening[J” (id. ¶ 27), Plaintiff called Fenton Harpster (“Harpster”), Blackman’s Regional Sales Manager of the Southern Division, (see Defs.’ 56.1 Statement ¶ 42), approximately “two weeks before [he] was supposed to start at Middletown[,]” (Pl.’s Aff. ¶28). Plaintiff told Harpster that he “was disabled because of [his] hip problems” and that he “was worried about being back under Robinson’s supervision” given Plaintiffs previous experience with Robinson. (Id.) Harpster responded that “the transfer was still going to happen,” that Plaintiff “should address [his] concerns directly to Robinson,” and that Harpster “would not get involved until after [Plaintiff] had tried [a] direct approach with Robinson.” (Id. ¶ 29.) Plaintiff, still “very worried about keeping [his] job[,]” “let the conversation with Harpster end at that point and prepared [himself] to suffer through Robinson’s supervision.” (Id. ¶ 30.)
Subsequent to Plaintiffs transfer, “Robinson’s abusive behavior picked up where it left off.” (Id. ¶ 32.) Although Plaintiff “cannot recall” a time when Robinson “called [him] the nickname ‘gimp’ ” after Plaintiff returned to the Middletown branch as a Blackman employee, he alleges that Robinson “did ... all of the other things he had done to [Plaintiff] when [Plaintiff] was previously under his supervision” as a Ridgewood employee, “including assigning [Plaintiff] tasks that required lifting in excess of 25 pounds, demanding that [Plaintiff] proceed to the warehouse and pick [up] orders even though there were [non-disabled] people ... [available] to do that work[,] and mocking and ridiculing [Plaintiff] because of [his] disability.” (Id.) Plaintiff specifically alleges that Robinson criticized him, sometimes in front of customers, for being slow and clumsy, and that on multiple occasions Robinson “made reference to having a ‘shovel’ and needing a ‘bag of fertilizer,’ ” which Plaintiff describes as “a reference to [Plaintiff] being near death and ready to be buried.” (Id. ¶ 33.) Pursuant to Harpster’s instructions, Plaintiff “attempted to complain to Robinson' about [his] behavior[,]” but Robinson “would not listen.” (Id. ¶ 34.) Instead, Robinson told Plaintiff “that he did not care” and then “ordered [Plaintiff] to go back to work.” (Id.)
On June 1, 2011, approximately eight weeks after Plaintiff was transferred to the Middletown branch, Plaintiff was terminated. (See id. ¶ 40.) Harpster arrived at the branch “late in the day ... and proceeded directly to Robinson’s office.” (Id.) The two “met behind closed doors ...
Plaintiff alleges that Robinson was involved in the decision to terminate him and that he was fired “because of his disability.” (Id. ¶ 43; Pl.’s 56.1 Statement ¶¶ 78, 80, 84.) At the time he was terminated, Harpster told Plaintiff that “it [was] not working out between [Plaintiff] and Black-man.” (Pl.’s Aff. ¶ 40.) Shortly after Plaintiff was terminated, however, Robinson told another employee, Joan Kukelka (“Kukelka”), that he had “felt sorry for [Plaintiff] because he was hurting and he was sitting behipd a desk and it was hard for him to move around, so [unemployment] was the best scenario.” (Deck of Sanjay V. Nair (“Nair Deck”) Ex. G (“Kukelka Dep.”), at 28-29 (Dkt. No. 50).) Defendants have separately maintained that Plaintiff was laid off because the Mid-dletown branch was losing money and Plaintiff had the lowest sales numbers in the branch. (See Pl.'s 56.1 Statement ¶¶ 120, 122, 124.) But Plaintiff alleges that his sales figures were the same as other employees who were not laid off at the time. (See Nair Deck Ex. B (“Robinson Dep.”), at 88 (“Q. And how was Gene doing relative to the other inside sales reps? A. Probably about the same as two others.”); Aff. of Fenton Harpster in Supp. of Partial Summ. J. (“Harpster Aff.”) ¶ 7 (Dkt. No. 68) (averring that Plaintiffs “sales numbers were unremarkable in that they were no different than two other inside salespersons at the time ... who, like [Plaintiff] also were not hitting their sales quotas”).) And he alleges that Robinson’s discriminatory mistreatment purposefully and directly contributed to his low sales figures. (See PL’s 56.1 Statement ¶ 72 (alleging that “Robinson took steps to purposefully interfere with Plaintiffs ability to perform his job duties successfully”).) Alternatively, Defendants maintain that Plaintiff was terminated because his skillset was “dif-fere[nt]” and less “versatilefe]” than that of his co-workers. (Id. ¶¶ 121, 123; see also Harpster Aff. ¶ 7 (averring that other employees with low sales numbers comparable to Plaintiffs “were capable of specialized sales and sales lead generation in ... areas ... [where Plaintiff] was not [as capable]”).)
No later than 90 days after Plaintiff was terminated, Harpster requested draft copy for a help-wanted advertisement for a position that was “precisely the same job that [Plaintiff had] held.” (See Pl.’s Aff. ¶ 49; PL’s 56.1 Statement ¶¶ 131-32 (alleging that “Harpster requested, reviewed and approved the publication of a help wanted advertisement for Plaintiffs position in the Middletown branch”).)
B. Procedural History
Plaintiff initially filed a lawsuit against Blackman, OCPG, Ridgewood, and Jules M. Weinstein (“Weinstein”), a principal officer of Ridgewood, in September 2011, alleging that those Parties violated federal and state labor laws by failing to pay Plaintiff minimum and overtime wages. (See Compl. (Dkt. No. 1).) Plaintiff then filed a charge of employment discrimination with the Equal Employment Opportunity Commission (“EEOC”) in October 2011, (see Am. Compl. ¶ 49 (Dkt. No. 12)), and the EEOC issued a right-to-sue letter in mid November, (see id. ¶ 51). Thereafter, Plaintiff filed an amended complaint against the same four defendants, alleging the previous two labor-law causes of action and adding two new causes of action, one under the Americans with Disabilities Act (“ADA”) and one under New York’s Human Rights Law, alleging that Blackman and OCPG engaged in disability-based discrimination. (See Am. Compl.)
The Parties completed discovery at the end of 2012. (See Dkt. No. 25.) In October 2013, Plaintiff and Weinstein informed the Court that they had reached a settlement agreement. (See Dkt. No. 46.) At those Parties’ request, the Court later entered an order dismissing Plaintiffs claims against Weinstein with prejudice. (See Dkt. No. 59 (entered November 12, 2013).)
Separately, and pursuant to a Motion Scheduling Order the Court adopted at a pre-motion conference held in June 2013, (see Dkt. No. 39), as modified by subsequent orders granting extension requests, (see Dkt. Nos. 42-44, 54, 58), Defendants Blackman and OCPG filed a Motion for Summary Judgment and accompanying Memorandum of Law in October 2013, (see Notice of Motion (Dkt. No. 47); Defs. Blackman Plumbing Supply, L.L.C. and Orange County Plumbing Group, L.L.C.’s Mem. of Law in Supp. of Partial Summ. J. (“Defs.’ Mem.”) (Dkt. No. 52)).
II. Discussion
A. Legal Standard
Summary judgment shall be granted where 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, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
“When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim[,]” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008) (citations omitted). ‘When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted); see also Wrobel v. Cnty. of Erie, .692 F.3d 22, 30 (2d Cir.2012) (“To survive a motion under Rule 56(c), [plaintiff] need[s] to create more than a metaphysical possibility that his allegations were correct; he need[s] to come forward with specific facts showing that there is a genuine issue for trial.” (emphasis and internal quotation marks omitted)). A fact is material when “it might affect the outcome of the suit under governing law.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted). Thus, a court’s goal should be to “isolate and dispose of factually unsupported claims or defenses[.]” Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548.
B. Analysis
Defendants move for summary judgment on certain aspects of Plaintiffs claims. First, Defendants move for summary judgment on Plaintiffs ADA claim and his related claim under New York Executive Law §§ 296 and 297, seeking a judgment that Plaintiff was not terminated because of his disability, that he was not denied a reasonable accommodation for his disability, and that he was not subject to a hostile work environment.
1. Disability Claims
Plaintiff brings three claims related to his disability and Defendants’ alleged mistreatment of Plaintiff while he was an employee at Blackman. First, he alleges that Defendants “terminated [him] against his will, in a summary fashion and because of his disability and in retaliation for seeking to exercise his rights to reasonable accommodations under the ADA.” (Am. Compl. ¶ 46.) Second, he alleges that Defendants “failed to provide the reasonable accommodation required by [him] for his continued employment^]” (Id. ¶ 63.) Third, he alleges that Defendants’ “actions and inac-tions created a hostile work environment based on [his] disability and perceived disability.” (Id. ¶ 65.) The Court will address each claim in turn.
a. Termination
Plaintiff first claims that Defendants terminated him because of his disability. “Claims alleging disability discrimination in violation of the ADA are subject to the burden-shifting analysis originally established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir.2013) (internal quotation marks omitted); see also McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.2009) (applying McDonnell Douglas burden shifting to an ADA discrimination claim, whereby “[a] plaintiff must establish a prima facie case; the employer must offer through the introduction of admissible evidence a legitimate non-discriminatory reason for the discharge; and the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext” (internal quotation marks omitted)).
At the second step, “the defendant must produce evidence” which supports a “clear and specific” explanation for the termination, and which, “taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir.2000) (internal quotation marks omitted); see also Avella v. Valley Cent. Sch. Disk, No. 09-CV-923, • 2011 WL 6338805, at *7 (S.D.N.Y. Dec. 19, 2011) (same). “If the defendant proffers such a reason, the presumption of discrimination drops out of the analysis, and the defendant will be entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) (alterations and internal quotation marks omitted).
Finally, at the third step, the plaintiff “must put forth adequate evidence to support a rational finding that the legitimate non-diseriminatory reasons proffered by the employer were false, and that more likely than not the employee’s [disability] was the real reason for the discharge.” Holt v. KMI-Cont’l, Inc., 95 F.3d 123, 129 (2d Cir.1996); see also Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir.2003) (holding that a plaintiff “must show, using evidence constituting the prima facie case, together with supportable inferences to be drawn from the false or erroneous character of the employer’s proffered reason, that the defendant’s proffered reason was pretextual” (citations and internal quotation marks omitted)). “The plaintiff retains the ultimate burden of persuasion,” but “[s]ummary judgment is appropriate only if the employer’s nondiscriminatory reason is dispositive and forecloses any issue of material fact.” Kinsella, 320 F.3d
Here, Plaintiff has made out a prima facie case. With regard to the only element in dispute — i.e., whether Plaintiff was terminated “because of his disability,” McMillan, 711 F.3d at 125 (internal quotation marks omitted) — Plaintiff alleges that both Robinson and Harpster had notice of his disability, (see Pl.’s Aff. ¶ 15 (alleging that Plaintiff told Robinson about his disability in 2008); id. ¶28 (alleging that Plaintiff told Harpster about his disability in 2011)), that Robinson had previously made negative comments about his disability in relation to his work performance, (see id. ¶ 19 (alleging that Robinson told Plaintiff “that [Ridgewood] would not keep [Plaintiff] employed if [he] was not 100%”); id. ¶ 32 (alleging that “Robinson’s abusive behavior [at Blackman] picked up where it left off [at Ridgewood],” and that, with the exception of calling Plaintiff a “gimp,” Robinson “did ... all of the other things he had done to [Plaintiff] when [Plaintiff] was previously under his supervision” at Ridgewood)), that Harpster and Robinson spoke immediately before Harpster terminated him, (see id. ¶ 40 (alleging that, on the day of Plaintiffs termination, Harpster arrived at the Middletown branch “and proceeded directly to Robinson’s offiee[,]” where the two “met behind closed doors ... for at least an hour[,]” “during which [Plaintiff] saw them talking and looking at things on the computer screen[,]” and after which “Harpster left the meeting and immediately came to [his] desk and ... without hesitation said ‘it is not working out between you and Blackman’ and ... told [Plaintiff] that [he] was being let go”)), and that Robinson later said that he was terminated because of his disability, (see Kukelka Dep. 28-29 (recalling that, days after Plaintiff was terminated, Robinson told her that “[h]e felt sorry for [Plaintiff] because he was hurting and he was sitting behind a desk and it was hard for him to move around, so [termination] was the best scenario”)). These allegations satisfy Plaintiffs “minimal” burden. See McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 215 (2d Cir.2006) (describing a plaintiffs “ ‘minimal’ burden of setting out a prima facie discrimination case” under the McDonnell Douglas framework); White-hurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 245 (S.D.N.Y.2014) (same); see also Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004) (“A plaintiff may rely on direct evidence of what the defendant did and said in satisfying her initial burden under McDonnell Douglas.” (alterations and internal quotation marks omitted)).
Defendants respond that Plaintiff was terminated for legitimate reasons that had nothing to do with Plaintiffs disability. They argue that Plaintiff was terminated because Blackman had “a need to reduce staff’ due to “unprofitability,” and because Plaintiff “had low sales numbers” and his “skill set differed from that of his other low-selling co-workers.” (Defs.’ Mem. 13.) They also argue that Harpster had no notice of Plaintiffs disability, and that Robinson — whom they admit had such notice — played no part in the decision to terminate Plaintiff. (See id. at 14 (“Robinson ... played no part in the decision to lay off Plaintiff.... Harpster made that decision without consulting Robinson, and Harpster was not knowledgeable about Plaintiffs allegedly disabled status at the time he made the decision. Robinson offered no opinion on the termination. Further, Harpster’s decision was not built or founded on any negative review or outlook on Plaintiff, as Harpster testified that he •had never heard any negative aspect of Plaintiffs job performance, excluding his knowledge of Plaintiffs poor sales numbers, which had been discussed by Robin
In response, Plaintiff alleges that Harp-ster knew about his disability, (see PL’s Aff. ¶¶ 28, 44), that Robinson did participate in the termination decision, (see PL’s Mem. 12-14), that his sales numbers were no worse than several other employees whom Defendants did not terminate at that time, (see id. at 14-15), that Plaintiff had received positive performance reviews and had not been warned about poor performance, (see id. at 15-16, 20), that Defendants gave inconsistent explanations— one of which directly evidences discrimination, (see Kukelka Dep. 28-29) — for their termination decision, (see PL’s Mem. 7-9), and that Defendants replaced Plaintiff with a less experienced employee who was not disabled, (see id. at 17-18). Taken together, these allegations are sufficient to support a jury’s finding that Defendants stated reasons for terminating Plaintiff were pretextual, and that Defendants terminated Plaintiff because he was disabled. See Zann Kwan v. Andalex Grp. L.L.C., 737 F.3d 834, 846-47 (2d Cir.2013) (holding that “shifting and somewhat inconsistent explanations” supporting a termination decision constituted “discrepancies” from which “a reasonable juror could infer that the explanations ... were pretextual” (internal quotation marks omitted)); Kinsella, 320 F.3d at 314 (where the defendant claimed that the plaintiff was terminated as part of a legitimate reduction in force (“RIF”), the plaintiffs allegations that the supervisor negatively commented on the plaintiffs disability and that the company rehired terminated employees who were not disabled, and some of whom were less experienced than the plaintiff, “would permit a reasonable finder of fact to conclude that [the defendant] used the legitimate RIF as an opportunity to terminate [the plaintiff] because of his disability”); Carlton, 202 F.3d at 137 (holding that, where the plaintiff “never received a negative written performance evaluation or formal warning,” and where there was not “any writing whatsoever criticizing [the plaintiffs] job performance,” the defendant’s explanation that plaintiff was fired for
In their Memoranda, Defendants dispute many of these allegations. (See Defs.’ Reply 4-8.) However, it is not the Court’s role, at summary judgment, to resolve these disputes. See Johnson v. IAC/Interactive Corp., 2 F.Supp.3d 504, 513 (S.D.N.Y.2014) (“[I]n determining whether the articulated reason for the action is a pretext, a fact-finder need not, and indeed should not, evaluate whether.a defendant’s stated purpose is unwise or unreasonable. Rather, the inquiry is directed toward determining whether the articulated purpose is the actual purpose for the challenged employment-related action.” (internal quotation marks omitted)); see also Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 326 (2d Cir.2011) (“The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.”). And the disputes themselves argue against granting summary judgment. See Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir.2008) (“To avoid summary judgment in an employment discrimination case, the plaintiff is not required to show that the employer’s proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors.” (internal quotation marks omitted)); Baron v. Advanced Asset & Prop. Mgmt. Solutions, L.L.C., 15 F.Supp.3d 274, 283-84 (E.D.N.Y.2014) (“An employment discrimination claimant may show pretext by demonstrating such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” (internal quotation marks omitted)). The Court thus denies Defendants’ Motion for Summary Judgment on Plaintiffs disability-discrimination claims.
b. Denial of Reasonable Accommodation
Plaintiff next alleges that Defendants violated the ADA when they denied him a reasonable accommodation for his disability. Like Plaintiffs termination claim, this claim is also subject to the McDonnell Douglas three-step burden-shifting framework. See McMillan, 711 F.3d at 125-26; see also Snowden v. Trs. of Columbia Univ., No. 12-CV-3095, 2014 WL 1274514, at *4 (S.D.N.Y. Mar. 26, 2014); Reyes v. Krasdale Foods, Inc., 945 F.Supp.2d 486, 491 (S.D.N.Y.2013). To make out a prima facie failure-to-accommodate claim under the ADA, a plaintiff must demonstrate that
(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could per*305 form the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.
McMillan, 711 F.3d at 125-26 (internal quotation marks omitted); see also Golf v. N.Y.C. Dep’t of Fin., No. 13-CV-2865, 2014 WL 1651946, at *5 (S.D.N.Y. Apr. 23, 2014) (same).
Here,' Defendants do not appear to dispute the first, third, or fourth elements.
“It is ... elemental that an employer could not have discriminated against a plaintiff because o/[his] disability if it was unaware that the plaintiff was, in fact, disabled.” Cozzi v. Great Neck Union Free Sch. Disk, No. 05-CV-1389, 2009 WL 2602462, at *14 (E.D.N.Y. Aug. 21, 2009); cf. Williams v. N.Y.C. Hous. Auth., No. 07-CV-7587, 2009 WL 804137, at *7 (S.D.N.Y. Mar. 26, 2009) (finding, in the context of a public-housing claim, that “[w]ithout adequate knowledge” of the plaintiff’s disability, the defendant “was not in a position to even offer, let alone refuse, a reasonable accommodation to [the] plaintiff’ (internal quotation marks omitted)). In a similar vein, a defendant “cannot be held liable for failing to provide reasonable accommodations when it had no actual or constructive knowledge of the need for any accommodations.” MacEntee v. IBM (Int’l Bus. Machs.), 783 F.Supp.2d 434, 444 (S.D.N.Y.2011), aff'd, 471 Fed.Appx. 49 (2d Cir.2012). To satisfy the notice requirement, a plaintiff must demonstrate that the defendant was aware that the plaintiff “was ‘disabled’ within the meaning of the ADA.” Young v. Ltd. Brands, No. 11-CV-2927, 2013 WL 5434149, at *8 (S.D.N.Y. Sept. 25, 2013) (finding that the defendants “had no notice that [the] [pjlaintiff had a disability” where the defendants “were unaware that [the] [plaintiff was ‘disabled’ within the meaning of the ADA, and did not consider her to be disabled”); see also Moore v. Time Warner GRC 9, 18 F.Supp.2d 257, 262 (W.D.N.Y.1998) (finding that the defendant did not have notice of the plaintiffs disability where “[m]ere knowledge that [the plaintiff] suffered from diabetes or hypertension [was] not equivalent to knowing that his condition ‘disabled’ him within the meaning of the ADA,” and collecting cases); cf. Cotz v. Mastroeni, 476 F.Supp.2d 332, 370 (S.D.N.Y.2007) (finding that a defendant, who allegedly discriminated against the plaintiff in the provision of public accommodations, had no notice of the plaintiffs disability where the plaintiff “never clearly informed [the defendant] that [the] plaintiff even had a disability nor requested any sort of accommodation”). Knowledge that a plaintiff has suffered an injury, by itself, is insufficient to satisfy the notice requirement. See McCoy v. Momingside at Home, No. ll-CV-2575, 2014 WL 737364, at *4 (S.D.N.Y. Feb. 25, 2014) (“An employer’s awareness that a plaintiff suffered some injury does not establish that an employer had notice that
Plaintiff has identified a genuine dispute of material fact over whether Defendants had notice of his disability and his request for a reasonable accommodation. Specifically, in an affidavit submitted with his Memorandum in Opposition to Defendants’ Motion, Plaintiff alleges that he notified Harpster of his situation shortly before he was transferred to Defendants’ Middletown branch:
I called Fenton Harpster on the telephone about two weeks before I was supposed to start at Middletown and I told him that I was worried about being .back under Robinson’s supervision. I told Harpster that I was disabled because of my hip problems and that Robinson had made it impossible for me to work because of my disability and had refused to give me the accommodations that the doctor had ordered. I told Fenton that Robinson mocked and ridiculed me all the time about my disability, that he called me names such as “gimp” and “dumb ass,” and that he had constantly criticized me for being too slow because of my disability.
(Pl.’s Aff. ¶ 28.) Plaintiff further alleges that Harpster declined to take any action in response to Plaintiffs concern:
Harpster responded that I should address these concerns directly to Robinson, that the transfer was still going to happen and that if issues came up again I should ask for a meeting with Robinson, “close the door” and raise my issues directly with Robinson. He told me that he would not get involved until after I had tried that direct approach with Robinson.
(Id. ¶ 29.) Feeling “surprised and disappointed by Harpster’s response,” Plaintiff “let the conversation ... end at that point and prepared [himself] to suffer through Robinson’s supervision.” (Id. ¶ 30.)
Defendants’ arguments in favor of summary judgment almost entirely ignore Plaintiffs allegation that he directly informed Harpster of his disability and his need for a reasonable accommodation. Instead, they rely on the assumption that Plaintiff bases his claim solely on the allegation that Plaintiff informed Robinson of his disability prior to, but not during, Plaintiffs employment at Blackman. In their framing of Plaintiffs claim, they acknowledge that “there may be some factual disagreement as to whether [Robinson] was put on notice as to a medical restriction preventing Plaintiff from lifting more than twenty-five pounds while he and Plaintiff were employed with Ridgewood Plumbing[.]” (Defs.’ Mem. 9.) However, they allege that whatever notice Robinson had at Ridgewood did not transfer to Blackman. (See id. at 10 (alleging that, when Blackman purchased Ridgewood, “it extended new offers of employment to some former Ridgewood Corp. employees on a belief that the employees would be ‘started from scratch’ with Blackman Plumbingf,]” and that “Blackman Plumbing never reviewed any prior personnel files belonging to Ridgewood Corp. with respect to Plaintiff’); see also Defs.’ Reply 2-3 (“[I]t is undisputed that Blackman Plumbing did not review any ‘personnel files’ from Ridgewood Corp. that might have held the doctor’s note on the basis
None of these allegations, however, addresses Plaintiffs allegation that he directly informed Harpster of his' disability and his need for a reasonable accommodation. Once Harpster was aware of Plaintiffs disability, Defendants had a duty to provide a reasonable accommodation. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir.2008) (“[A]n employer has a duty reasonably to accommodate an employee’s disability ... if the employer knew or reasonably should have known that the employee was disabled.”); see also Miller v. McHugh, 814 F.Supp.2d 299, 312 (S.D.N.Y.2011) (“[A]t times the employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation.” (internal quotation marks omitted)).
Accordingly, because Plaintiffs allegations, taken as true, establish a prima facie case for a failure-to-accommodate claim, and because Defendants do not even attempt to meet their burden of demonstrating that they failed to accommodate Plaintiffs disability for a legitimate reason, the Court denies Defendants’ Motion for Summary Judgment on this claim.
c. Hostile Work Environment
Plaintiff finally claims that Defendants violated the ADA when they created a hostile work environment for Plaintiff because of his disability. As Defendants point out, the Second Circuit has not yet decided whether the ADA comprehends a hostile-work-environment claim. See, e.g., Adams v. Festival Fun Parks, L.L.C., 560 Fed.Appx. 47, 51 n. 4 (2d Cir.2014) (noting that “[s]everal ... sister circuits have recognized a hostile work environment claim under the ADA[,]” but that the Second Circuit “ha[s] not yet had occasion to consider [that] cause of action”); Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 973 F.Supp.2d 386, 405 (S.D.N.Y. 2013) (“The Second Circuit Court of Appeals has not yet decided whether the ADA provides a basis for a hostile work environment claim.”). However, district courts within the Second Circuit have assumed, without deciding, that such a claim is cognizable. See, e.g., Tse v. N.Y. Univ., No. 10-CV-7207, 2013 WL 5288848, at *13 n. 13 (S.D.N.Y. Sept. 19, 2013) (“Although the Second Circuit has not yet held that a hostile work environment claim is actionable under the ADA, this Court assumes that Plaintiff can bring a hostile work environment claim under the ADA.”); Ugactz v. United Parcel Serv., Inc., No. 10-CV-1247, 2013 WL 1232355, at *16 n. 30 (E.D.N.Y. Mar. 26, 2013) (“The Court assumes without deciding that Plaintiff can bring a hostile work environment claim under the ADA.”); Lewis v. Erie Cnty. Med. Ctr. Corp., 907 F.Supp.2d 336, 347 n. 3 (W.D.N.Y.2012) (“For the purposes of this motion, the court will assume that a hostile work environment claim is available under the ADA and that the standards for a Title VII hostile work environment claim apply.”). This Court will also assume that such a claim is cognizable.
To substantiate a hostile-work-environment claim, a plaintiff must allege facts
that would tend to show that the complained of conduct: (1) “is objectively severe or pervasive — that is, ... creates an environment that a reasonable person would find hostile or abusive;” (2) “creates an environment that the plaintiff subjectively perceives as hostile or abusive;” and (3) “creates such an environment because of the plaintiffs [disability].”
Vaigasi v. Solow Mgmt. Corp., No. 11-CV-5088, 2014 WL 1259616, at *10 (S.D.N.Y. Mar. 24, 2014) (first alteration in original) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007)); see also Giambattista v. Am. Airlines, Inc., 5 F.Supp.3d 284, 294-95 (E.D.N.Y.2014) (same). “Whether a workplace is a hostile work environment under the provisions of the ADA requires consideration of the totality of the circumstances[,]” including “ ‘the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably, interfere^] with [the plaintiffs] work performance.’ ” Giambattista, 5 F.Supp.3d at 294 (alterations in original)
Here, Defendants appear to argue' that Plaintiff has failed to show conduct that a jury could find to be “objectively severe or pervasive” and, in some cases, has failed to show that conduct was connected to Plaintiffs disability. Specifically, they argue that “Plaintiffs only acknowledgment of any name-calling by Robinson during [his] tenure at Blackman Plumbing consists of [a] reference to Robinson’s calling of Plaintiff a ‘dumb ass[,]’ ” which they argue “is an unserious insult that is not actionable[.]” (Defs.’ Mem. 6.) They also acknowledge Plaintiffs allegation that Robinson mocked him as being “slow,” but they argue that “Plaintiff ... identified only a single instance during [his] time at Blackman Plumbing where he was criticized for being too ‘slow[.]’ ” (Id. at 7 (emphasis omitted).) They also argue that neither of these alleged insults relate to Plaintiffs disability, (id. at 6-7), and they similarly argue that Plaintiffs identification of specific disagreements with Robinson and Robinson’s general “harsh or ‘nasty’ disposition” do not demonstrate hostile treatment because of his disability, (id. at 7 (“Plaintiff only cites two actual disagreements between himself and [Robinson] while employed by Blackman Plumbing, and each of these incidents concerned Plaintiffs interaction with customers.... Robinson’s supposedly harsh or ‘nasty’ disposition was universally felt by his employees and was not unique to Plaintiff. ...”)).
Plaintiff disputes Defendants’ characterization of his allegations, and he submits other allegations of allegedly discriminatory treatment that Defendants do not directly address. For example, Plaintiff makes a number of allegations that contradict Defendants’ account of the severity, frequency, and causality of Robinson’s alleged conduct:
I remember several instances during [my employment at Blackman] that Rob*311 inson would be speaking to a customer and point out me walking around (slowly) and say things out loud for me and the customer to hear like: “look at him,” mocking my clumsy walk. Several times he made reference to having a “shovel” and needing a “bag of fertilizer,” a reference to me being near death and ready to be buried. He made this comment a few times during this eight week period.
[A]fter a particularly mean-spirited mocking of me in front of a customer because I was walking slowly and with a pronounced limp, I asked him to stop making fun of me in front of people and to my face because it was wrong to talk to someone like that. Robinson responded that he did not care and ordered me to go back to work.
(Pl.’s Aff. ¶¶ 33-34; see also Nair Decl. Ex. A (“Lewis Dep.”), at 226 (alleging that Robinson “was just being nasty all the way around” while at Blackman).) Moreover, while Defendants argue that Robinson’s allegedly harsh treatment of Plaintiff was not connected to Plaintiffs disability, Plaintiff disputes that characterization. (See PL’s Aff. ¶ 32 (alleging that Robinson “mock[ed] and ridicule[ed] [Plaintiff] because of [his] disability”); id. ¶ 39 (alleging that “Robinson took these actions because of [Plaintiffs] disability”).) Finally, even if Defendants are correct that many of Plaintiffs specific allegations related to Robinson’s treatment of him involve conduct that occurred before Plaintiffs employment at Blackman, Plaintiff alleges that Robinson treated him in the same hostile manner while he was at Blackman. (See id. ¶ 32 (alleging that while Plaintiff worked for Blackman, “Robinson’s abusive behavior picked up where it left off[,]” and that “[w]hile [Plaintiff] cannot recall that [Robinson] actually called [him] the nickname ‘gimp’ during [his employment at Black-man], he did do all of the other things he had done to [Plaintiff] when [Plaintiff] was previously under his supervision”).)
In response, Defendants argue that the Court should disregard Plaintiffs identification of these “several instances” of misconduct in his affidavit because they contradict his deposition testimony. (See Defs.’ Reply 1.) According to their account of the deposition, “when [Plaintiff was] asked if there were any ... alleged abusive incidents with Robinson” other than a dispute Plaintiff had discussed regarding his timeliness in responding to a customer, Plaintiff “only identified one further incident in which Robinson complained about whether Plaintiff was selling a proper product to a customer.” (Id.) In their view, Plaintiffs failure to identify other incidents in response to that question directly contradicts his later identification of “several” incidents. But a review of the deposition transcript makes clear that Defendants’ interpretation is incorrect. In fact, Plaintiff was not asked to list all incidents of discrimination, but was instead asked if “there [were] any other incidents.” (Lewis Dep. 226.) Plaintiff then responded by recounting one such incident — effectively answering the question in the affirmative — and then Defendants’ counsel responded by asking a question that changed the subject. (See id. at 226-27 (responding to Defendants’ question, “[w]ere there any other incidents with Rich Robinson” by recounting one incident, and then responding to Defendants’ follow-up question, “[w]hen you went back to the Middletown office in 2011, were you required to lift anything in excess of 25 poundsf,]” in the affirmative).) In other words, Plaintiffs affidavit is not inconsistent with his deposition testimony.
Moreover, in response to Plaintiffs allegation that Robinson taunted him with imagery of a “shovel” and a “bag of
2. Labor-Law Claims
Defendants next seek summary judgment on Plaintiffs federal and state labor-law claims, which allege that certain Defendants “failed to pay ... minimum wage, overtime and timely wages,” in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and New York Labor Law. (See Am. Compl. ¶¶ 53-59.) Plaintiff appears to argue that his claims arise out of his employment at both Ridge-wood and Blackman. (See Defs.’ Mem. 16 & n. 3.) In this Motion, Defendants seek summary judgment on Plaintiffs claims only to the extent that Plaintiff alleges that Blackman is indirectly liable for labor-law violations that occurred while Plaintiff was an employee at Ridgewood. (See id.) Accordingly, the Parties agree that, to win on this claim, Plaintiff must show that Blackman is a successor-in-interest to Ridgewood. (See Defs.’ Mem. 16; PL’s Mem. 21-25.) See also Battino v. Cornelia Fifth Ave., L.L.C., 861 F.Supp.2d 392, 400 (S.D.N.Y.2012) (analyzing whether successor liability applied in the context of an FLSA claim).
“Under both New York law and traditional common law, a corporation that purchases the assets of another corporation is generally not liable for the seller’s liabilities.” New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir.2006); see also In re Grumman Olson Indus., Inc., 467 B.R. 694, 700 (S.D.N.Y.2012) (same). Given that “[t]he Second Circuit has not delineated what the proper test for successor liability should be in the FLSA context[,]” courts have analyzed FLSA successor — liability claims under two commonly applied tests — namely, “the traditional common law test ... applied in New York,” and “the ‘substantial continuity’ test applied by federal courts in most labor and employment contexts.” Battino, 861 F.Supp.2d at 400; see also Alvarez v. JO Mulberry Rest., Inc., No. 11-CV-9107, 2012 WL 4639154, at *4 (S.D.N.Y. Oct. 3, 2012) (collecting cases where courts, both within the Second Circuit and in other circuits, have applied either the common-law test or the substantial-continuity test). Because the Court finds that Defendants are. entitled to summary judgment under either test, it need not determine which test applies. Cf. Alvarez, 2012 WL 4639154, at *5 (“In this case, the Court need not choose between these two tests,
a. Common-Law Test
Under the common-law test,
a buyer of a corporation’s assets will be hable as its successor if (1) it expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction [was] entered into fraudulently to escape, such obligations.
Nat’l Serv. Indus., 460 F.3d at 209 (internal quotation marks omitted); see also Recurrent Capital Bridge Fund I, L.L.C. v. ISR Sys. & Sensors Corp., 875 F.Supp.2d 297, 306 (S.D.N.Y.2012) (same). Because neither Party argues that the first or fourth exception to the general rule against successor liability applies, resolution of Defendants’ Motion requires only that the Court analyze the second and third exceptions, which, in cases like this one, “are so similar that they may be considered a single exception.” Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 45 n. 3 (2d Cir.2003); see also Battino, 861 F.Supp.2d at 401 (same).
To impose successor liability under either the “de facto merger” or the “mere continuation” exception, a plaintiff must prove “continuity of ownership” between the predecessor and the successor corporations. Battino, 861 F.Supp.2d at 401; see also Priestley v. Headminder, Inc., 647 F.3d 497, 505 (2d Cir.2011) (noting that “continuity of ownership is the essence of a merger, and the doctrine of de facto merger cannot apply in its absence” (citations and internal quotation marks omitted)); Graham v. James, 144 F.3d 229, 240 (2d Cir.1998) (“Under the common law mere continuation theory, successor liability attaches when the plaintiff demonstrates the existence of a single corporation after the transfer of assets, with an identity of stock, stockholders, and directors between the successor and predecessor corporations.” (internal quotation marks omitted)). Here, however, there is no continuity of ownership between Ridge-wood and Blackman because it is undisputed that Blackman purchased certain of Ridgewood’s assets in connection with a bankruptcy proceeding. (See Defs.’ 56.1 Statement ¶¶ 96-97 (alleging that Ridge-wood filed for bankruptcy in 2010, that Ridgewood thereafter “turned over its assets to” Sovereign Bank after defaulting on its loans, that Blackman, “through its wholly-owned subsidiaries, purchased the facilities leases belonging to [Ridgewood] in a bankruptcy proceedingf,]” and that Blackman “made the purchase from Sovereign Bank,” rather than from Ridgewood); PL’s 56.1 Statement ¶¶ 96-97 (admitting these allegations); see also Nardone Aff. ¶¶ 4-5 (affirming these allegations); Nar-done Aff. Ex. K (bankruptcy court order approving sale of Ridgewood’s assets to Sovereign Bank); Nardone Aff. Exs. L, M (contracts between Sovereign Bank, Ridgewood, and two of Blackman’s wholly owned subsidiaries for the purchase from Sovereign Bank of certain of Ridgewood’s assets — including property leases and various types of data).) Thus, Plaintiff cannot prove successor liability under the common-law test. See Doktor v. Werner Co., 762 F.Supp.2d 494, 499 (E.D.N.Y.2011) (“Continuity of ownership exists where shareholders of the selling corporation become direct or indirect shareholders of the purchasing corporation. Such common ownership does not exist where, as here, there is a sale of assets for cash.”); Desclafani v. Pave-Mark Corp., No. 07-CV-4639, 2008 WL 3914881, at *4 (S.D.N.Y.
b. Substantial-Continuity Test
Under the substantial-continuity test, courts generally analyze nine factors:
(1) whether the successor company had notice of the charge or pending lawsuit prior to acquiring the business or assets of the predecessor; (2) the ability of the predecessor to provide relief; (3) whether there has been a substantial continuity of business operations; (4) whether the new employer uses the same plant; (5) whether he uses the same or substantially the same work force; (6) whether he uses the same or substantially the same supervisory personnel; (7) whether the same jobs exist under substantially the same working conditions; (8) whether he uses the same machinery, equipment, and methods of production; and (9) whether he produces the same product.
Battino, 861 F.Supp.2d at 404 (internal quotation marks omitted).
“The successor doctrine,is derived from equitable principles, and it would be grossly unfair, except in the most exceptional circumstances, to impose successor liability on an innocent purchaser when ... the successor did not have the opportunity to protect itself by an indemnification clause in the acquisition agreement or a lower purchase price.”); Rojas v. TK Commc’ns, Inc., 87 F.3d 745, 750 (5th Cir. 1996) (“This court agrees with Musikiwamba that the first two factors are critical.”); Rowe Entm’t, Inc. v. William Morris Agency, Inc., No. 98-CV-8272, 2005
Plaintiff fails to meet this burden. Although Blackman purchased Ridge-wood’s assets in 2010, (see Nardone Aff. ¶¶ 4-5; Am. Compl. ¶¶ 22-23), Plaintiff did not raise his FLSA claim in a lawsuit until he filed the instant Action in October 2011, (see Compl.), and he does not otherwise allege that he filed any formal complaints prior to the purchase. Thus, to satisfy the notice element, Plaintiff must allege that Blackman had notice of a potential claim. See Battino, 861 F.Supp.2d at 405 (recognizing that, where a plaintiff cannot allege “notice of actual pending lawsuits,” he may allege “notice of potential liability” (internal quotation marks omitted)). Here, however, he has failed to identify any disputed material facts that would support a finding that Blackman had such notice.
Essentially, Plaintiff argues that Black-man knew about Plaintiffs potential claim because, “upon his employment by Defendants, Plaintiffs wage scheme was changed from Ridgewood’s violative wage scheme of salary with no overtime, to a wage scheme based on hourly pay with at least some recognition of the applicability of overtime pay[.]” (Pl.’s Mem. 22.) He further argues that Blackman “made the change to Plaintiffs pay structure because [it was] cognizant of the legal perils” of not making the change given its contemporaneous experience with “investigations and findings of liability by both the federal Department of Labor and the New York State Department of Labor regarding the practice of not paying [its] Assistant Managers overtime [wages].” (Id. at 22-23.)
Second, in addition to failing to allege that Blackman knew of a potential claim, Plaintiff has failed to allege that Ridge-wood knew of such a claim. As discussed, none of the wage records or investigation records Plaintiff submitted concerned Ridgewood, and there is otherwise no evidence in the record that Ridgewood knew of any potential violations. Plaintiffs counsel’s contention at oral argument—
III. Conclusion
In light of the foregoing, the Court grants Defendants’ Motion in part and denies it in part. Specifically, it grants Defendants’ Motion for Summary' Judgment on Plaintiffs labor-law claims, and it thereby dismisses that claim as alleged against Defendants Blackman and OCPG for any labor-law violations that occurred while Plaintiff was employed at Ridgewood.
SO ORDERED.
. A "picker” is a "machine!3 ••• which would have enabled Plaintiff to perform [lifting] tasks using mechanical assistance.” (Am. Compl. ¶ 33.)
. Plaintiff alleges that he never received a pay raise subsequent to this evaluation. (See PL’s Aff. ¶ 25.)
. Harpster disputes that he was attempting to fill Plaintiff's position. (See Nair Deck Ex. C (“Harpster Dep.”), at 42 ("Q. When you filled [Plaintiff's] position who did you fill it with, do you remember? A. I wouldn’t say we filled [Plaintiff’s] position. I don’t term it that.”); Harpster Aff. ¶ 12 ("This job advertisement was not posted in contemplation of filling the position that [Plaintiff] previously vacated.”).)
. All parties, in their briefing, refer to Fred’s last name as Krampath. However, his ré-sumé indicates that his last name is actually Kamprath. (See Charny Deck Ex. 5 (Kram-path's résumé).) For the sake of consistency, the Court will also refer to his last name as Krampath.
. Plaintiff's settlement agreement with Wein-stein did not affect his claims against Ridge-wood, and thus Ridgewood is still a defendant in this case. However, Ridgewood did not join in Blackman’s and OCPG’s Motion.
. For purposes of resolving the instant Motion, the standard of liability under New York state law is the same as the ADA standard. See Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir.2006) (noting that, in the context of a disability-discrimination claim, "[t]he standards for liability under [N.Y. Exec. Law § 296] are the same as those under the equivalent federal antidiscrimination laws”); Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 117 n. 1 (2d Cir.2004) ("New York state disability discrimination claims are governed-by the same legal standards as federal ADA claims.”); Gill v. Maul, 61 A.D.3d 1159, 876 N.Y.S.2d 751, 753 (2009) (recognizing that "the ADA and Executive Law § 296 use the same legal standards to establish discrimination”). The Court therefore will not separately address Plaintiff’s state-law claim.
. In his Memorandum, Plaintiff argues that the Court should apply a mixed-motive analysis to his claim, rather than the McDonnell Douglas burden-shifting framework, because he has presented "direct evidence of discrimination.” (PL's Mem. 2.) Under a mixed-motive analysis, "if the plaintiff establishes that a prohibited discriminatory factor played a 'motivating part’ in a challenged employment decision, the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision anyway.” Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). In certain cases, the Second Circuit has held that a mixed-motive analysis may be appropriate in the context of an ADA claim. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir. 2000) ("agree[ing] with the analysis in ... cases” from "a number of other circuits [which] have held that the mixed-motive analysis available in the Title VII context applies equally to cases brought under the ADA”); see also Perry v. NYSARC, Inc., 424 Fed.Appx. 23, 25 (2d Cir.2011) ("[The plaintiff's] ADA claim could ... succeed if she were able to show that discriminatory animus played a motivating role in [the defendant’s] otherwise legitimate decision to alter her working conditions.” (citing Parker, 204 F.3d at 337)); Olson v. New York, 315 Fed.Appx. 361, 363 (2d Cir.2009) (noting, in an ADA case, that the Second Circuit has "consistently held that a plaintiff in an employment discrimination case need not prove that discrimination was the sole motivating factor, the primary motivating factor, or the real motivating factor in the adverse employment action; she need only prove that discrimination was a motivating factor” (citing Owen v. Thermatool Corp., 155 F.3d 137, 139 n. 1 (2d Cir.1998); Renz v. Grey Adver. Inc., 135 F.3d 217, 222 (2d Cir. 1997); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995))).
However, the Second Circuit has also recognized that “it is questionable whether [ADA] Title II discrimination claims can proceed on a mixed-motive theory after the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), where the Court held that the [ADEA] does not authorize
Regardless of the appropriateness of applying a mixed-motive analysis to an ADA claim, the Court need not address this issue because it holds that Plaintiff has satisfied the more-stringent burden under the McDonnell Douglas framework. Cf. Berkowitz v. Cnty. of Orange, 120 F.Supp.2d 386, 400 (S.D.N.Y. 2000) (noting that "[a] plaintiff’s burden of establishing a prima facie case is even greater under the mixed-motives approach than under McDonnell Douglas ”).
. To be clear, in their Memorandum, Defendants do argue that Plaintiff fails to demonstrate the. fourth requirement. (See Defs.’ Mem. 9.) However, it is clear from the phrasing of their specific contention and from the context of their overall argument that they dispute only whether Plaintiff gave them notice of his disability and his request for a reasonable accommodation. (See id. (identifying the "central issues” as whether Defendants had notice of Plaintiff’s disability and whether Defendants "refused to make [a reasonable] accommodation (when [they] had no such notice)”).)
. Although the Parties do not directly address this issue, the Court notes that Harpster’s knowledge of Plaintiff's disability was sufficient to provide notice to Defendants for purposes of ADA liability. See Brady, 531 F.3d at 134 (finding sufficient notice where record evidence demonstrated that a boss and a "store manager” perceived the plaintiff to be disabled); see also Alexiadis v. N.Y. Coll, of Health Professions, 891 F.Supp.2d 418, 430 n. 10 (E.D.N.Y.2012) (denying a motion for summary judgment where the plaintiff alleged that his supervisors regarded him as disabled); Davis v. Vt., Dep’t of Corr., 868 F.Supp.2d 313, 326-27 (D.Vt.2012) (denying a motion to dismiss where the plaintiff alleged that his "supervisors and coworkers ... regarded [him] as having a disability”); Price v. City of New York, 797 F.Supp.2d 219, 232 (E.D.N.Y.2011) (finding that the plaintiff alleged “that his employer had notice of his alleged disability” where the plaintiff alleged “that he notified both his supervisor ... and his union representative ... about his need for accommodation”).
. The Court also notes that Defendants’ arguments do not undermine Plaintiff's state-law claim, because under New York law, once an employer has knowledge of an employee’s disability, "an employer’s failure to engage in the interactive process is itself a violation of the law[,]” regardless of whether a reasonable accommodation even existed. Vangas v. Montefiore Med. Ctr., 6 F.Supp.3d 400, 420 (S.D.N.Y.2014) (collecting cases).
. The Battino court applied the same nine-factor test that the Seventh Circuit applied in Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.1985). See Battino, 861 F.Supp.2d at 404 (quoting Musikiwamba, 760 F.2d at 750). The Seventh Circuit, in turn, based its test on the nine-factor test the Sixth Circuit applied in E.E.O.C v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir.1974). See Mac-Millan Bloedel Containers, 503 F.2d at 1094 ("Courts that have considered the successor-ship question in a labor context have found a multiplicity of factors to be relevant. The include: 1) whether the successor company had notice of the charge, 2) the ability of the predecessor to provide relief, 3) whether there has been a substantial continuity of business operations, 4) whether the new employer uses the same plant, 5) whether he uses the same or substantially the same work force, 6) whether he uses the same or substantially the same supervisory personnel, 7) whether the same jobs exist under substantially the same working conditions, 8) whether he uses the same machinery, equipment and methods of production and 9) whether he produces the same product.”).
. In support of this argument, Plaintiff has submitted documentation indicating that Blackman — but not Ridgewood — had been subject to federal and state investigations related to labor-law violations beginning as early as 2008 and continuing through at least 2011. (See Charny Decl. Ex. 8.)
. In Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973), the Supreme Court upheld a lower court's finding that a successor company "purchased [a] business with knowledge of ... unfair labor practice litigation” where a manager from the predecessor company "continued with the enterprise under [the successor company’s] ownership with the title of general manager and presidentL]’ ” and where there was evidence "sufficiently substantial to support an inference that [the manager] informed his prospective employer of the litigation before completion of the sale.” Id. at 173, 94 S.Ct. 414. In that case, however, there was evidence that the manager knew of actual, pending litigation — including evidence that the manager "had authorized payment of substantial fees in connection with” the litigation. Id. at 174, 94 S.Ct. 414; see also Romita, 2014 WL 1092867, at *5 & n. 5 (finding plausible the plaintiffs' allegations, at the motion-to-dismiss stage, that a principal owner and president of a predecessor company who was hired by a successor company informed the successor company of a claim, but only where the predecessor company faced actual litigation, including a default judgment). Here, by contrast, there is no evidence in the record that the Ridgewood executives knew of an actual or potential claim.
. At oral argument, Plaintiff's counsel argued that the Court shoüld deny summary judgment for the same reasons the court expressed in R.C.M. Exec. Gallery Corp. v. Rols Capital Co., 901 F.Supp. 630 (S.D.N.Y.1995). In that case, as relevant here, the court denied summary judgment on "[t]he issue of whether [a partner at the predecessor company] knew about any alleged wrongdoing by [the company]” because it found that that issue "involve[d] numerous questions of fact” and therefore "[could not] be resolved in the context of a motion for summary judgment.” Id. at 636; see also Abdel-Khalek v. Ernst & Young, L.L.P., No. 97-CV-4514, 1999 WL 190790, at *7 (S.D.N.Y. Apr. 7, 1999) (denying a motion for summary judgment where "there [was] an issue of fact about whether the defendant had notice of the plaintiff’s” discrimination claim because the plaintiff alleged that she had notified a partner at the successor company of potentially actionable conduct at the predecessor company). Here, however, although Plaintiff argues that Black-man had notice, he does not identify a genuine dispute over a material fact that would support the inference that Blackman had notice. Summary judgment is therefore proper, notwithstanding the court’s holding in Rols Capital.
. Aside from these general concerns weighing against a finding of successor liability in the bankruptcy context, courts also recognize that, “[w]here the successor corporation purchases the assets of a bankrupt entity, it is appropriate to look to the relevant purchase documents, and to consider the policies of the bankruptcy laws when determining the successor liability issue.” Doktor, 762 F.Supp.2d at 498. "An asset purchase agreement that specifically negates facts that might otherwise support successor liability is entitled to enforcement.” Id. More specifically, under certain provisions of the Bankruptcy Code, "[a] bankruptcy court's order approving the sale of assets serves to enjoin existing claimants’ successor liability claims against the purchaser!.]” Lyons v. Rienzi & Sons, Inc., 863 F.Supp.2d 213, 223 (E.D.N.Y.2012), on reconsideration in part, No. 09-CV-4253, 2012 WL 1339442 (E.D.N.Y. Apr. 17, 2012) (internal quotation marks omitted); see also In re Smart World Techs., L.L.C., 423 F.3d 166, 169 n. 3 (2d Cir.2005) ("Section 363 [of the Bankruptcy Code] permits sales of assets free and clear of claims and interests. It thus allows purchasers ... to acquire assets without any accompanying liabilities.” (citation omitted) (citing 11 U.S.C. § 363(f))); In re Grumman Olson Indus., 467 B.R. at 703 ("Section 363(f) can be used to sell property free and clear of claims that could otherwise be assertable against the buyer of the assets under the common law doctrine of successor liability.” (internal quotation marks omitted)).
Here, the bankruptcy court order approving the sale of Ridgewood’s assets to Sovereign Bank specified that the sales were "free and clear of all liens, claims and encumbrances[.]”, (Nardone Aff. Ex. K, at 7.) Moreover, the subsequent "Secured Party Sale and Disposition Agreement” between Sovereign Bank and Blackman specified that Blackman “shall not assume or otherwise be liable in respect of, or be deemed to have assumed or otherwise be liablé in respect of, any debt, claim, credit, obligation or other liability of [Ridgewood] including ... any litigation[J” (Nardone Aff. Ex. L, at 6.) Without deciding
. In their Memorandum, Defendants clarified that they are "not moving as against direct claims made against [them] for unpaid wages and hours, and [in their Motion] only address[] those indirect claims [they are] allegedly subject to as a supposed successor to [Ridgewood].” (Defs.’ Mem. 16 n. 3.) The scope of this Order is thus so limited.