MEMORANDUM AND ORDER
I. Preliminary Statement
Plaintiff Mary Kay Scalera (“Scalera”) brings this disability discrimination action against Defendants Electrograph Systems, Inc. (“Electrograph”), Kathy Koziol (“Koziol”), Rose Ann Gordon (“Gordon”), and Alan Smith (“Smith”) (collectively, “Defendants”) for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. and the New York Human Rights Law (“NYHRL”), N.Y. Exec. Law
Defendants now move for summary judgment on four separate grounds. For the foregoing reasons, Defendants’ motion for summary judgment is DENIED.
II. Background
The following facts are drawn from the parties’ Rule 56.1 Statements and are construed in the light most favorable to the non-moving party. See Capobianco v. New York,
A. Parties
Defendant Electrograph was a New York Corporation which employed approximately 200 employees nationwide. Defs.’ 56.1 Stmt. ¶¶ 3-4. However, Electrograph liquidated its assets and no longer functions as a viable enterprise. Id. ¶ 6. During all relevant time periods, Defendant Smith was the CEO of Electrograph, Defendant Gordon was the Director of Human Resources, and Defendant Koziol was the Director of Operations. Id. ¶¶ 7-8, 12. The Plaintiff was employed by Electrograph as a Systems Programmer Analyst at its Hauppauge office from September 16, 2005, until October 11, 2006. Id. ¶¶ 1-2. Scalera suffers from a genetic disorder called Pompe Disease which severely impairs her ability to walk.
B. Accommodations for Scalera
When Plaintiff was offered the job as a software programmer, she was provided with the opportunity to purchase a chair of her choice. This chair was delivered to Plaintiffs desk prior to her first day of employment. Id. ¶¶ 20-21. Scalera was also permitted to enter and exit though the side entrance of the building since that path minimized the distance she had to walk between her car and cubicle. Id. ¶¶22, 27. Plaintiff utilized the side entrance every day she was employed by Electrograph. Id. ¶ 23. Although management advised all employees sometime in October 2005 that they were not permitted to enter or exit the building through the side entrance, Plaintiff requested and received permission from her supervisor, Joe Koos, to continue using it. Id. ¶ 24. Although not asked personally by Scalera, Defendant Gordon as HR Director learned of Plaintiffs request to use the side entrance and approved it as a reasonable accommodation. Id. ¶26. Scalera frequently received manual assistance from Electrograph employees, including entering and exiting the building. Id. ¶¶ 36-37.
Scalera also utilized the parking spot closest to the side entrance of the building. Id. ¶ 28. Defendants claim that Plaintiff requested, and was granted, as a reasonable accommodation, the right to use this particular parking spot. Id. ¶ 29. Plaintiff denies this assertion, however, and states that she neither requested the right
Sometime in December 2005, Defendant Koziol had a conversation with Plaintiff and offered to relocate Plaintiffs cubicle to one that was closer to the ladies room.
C. Requested Accommodations
During her employment, Plaintiff claims that she requested two accommodations from Defendants: (1) a higher toilet seat in the women’s room; and (2) a hand rail for the side entrance of the Electrograph building. PL’s 56.1 Stmt. ¶ 39. Plaintiff contends that on two separate occasions in or around December 2005, she made in-person requests to Koziol for a higher toilet seat. Id. ¶¶ 39-40. Koziol denies that Plaintiff ever asked her for higher seating in the bathroom. Defs.’ 56.1 Stmt. ¶ 33. Other than Koziol, Plaintiff does not allege that she discussed the height of the toilet seats with anyone else at Electrograph. PL’s 56.1 Stmt. ¶ 41. Scalera also claims that she requested that a hand rail be installed by the steps at the side entrance sometime in November 2005. Id. ¶ 43. According to Plaintiff, in addition to in-person requests for the installation of a railing, she also e-mailed and called Defendant Gordon about the requested accommodation. Id. Defendant Gordon denies ever being asked about the railing. Defs.’ 56.1 Stmt. ¶ 45.
D. The Accident
On July 13, 2006, while exiting the building through the side entrance, Plaintiff fell. Defs.’ 56.1 Stmt. ¶ 46. Subsequent to the fall, Plaintiff requested and was granted non-FMLA leave for 12 weeks. Id. ¶ 48. At the end of the 12 weeks, and in accordance with company policy, Electrograph terminated Plaintiffs employment. Id. ¶ 49. On account of her injuries, Plaintiff has been awarded Workers’ Compensation. Id. ¶ 50. Plaintiff also receives disability payments from Social Security and long-term disability payments from two insurance companies. Id. ¶¶ 51-52.
III. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure dictates that a “court shall grant summary judgment if 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). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc.,
Where the movant shows a prima facie entitlement to summary judgment, “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord,
IY. Discussion
In this case, Scalera alleges that the Defendants failed to make reasonable accommodations for her disability when they failed to provide higher seating for a toilet in the women’s restroom and failed to install a hand rail at the side entrance. For purposes of this motion, Defendants make the following concessions: (1) Plaintiff is disabled under the ADA; (2) Electrograph was Plaintiffs employer under the ADA and NYHRL since it employed more than 15 people; (3) Electrograph recognized Plaintiffs disability, which it understood to be difficulty with walking; and (4) installing raised seating in the bathroom or a hand rail would not have posed an undue financial hardship on Electrograph.
Notwithstanding these concessions, Defendants contend that ADA liability is inappropriate because: (1) Plaintiff has not met her prima facie burden since she has provided no evidence that Defendants’ alleged failures to accommodate were motivated by Plaintiffs disability;
A. Prima Facie Case
Under the ADA, “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.
Id. § 12112(b)(5)(A). In reasonable accommodation cases, such as the present action, “the plaintiffs burden ‘requires a showing 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 [or without] reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.’” Graves,
1. Motive
Based on the parties’ submissions, there appears to be some confusion as to what is necessary to establish a prima facie disability discrimination claim where
In support of this additional element, Defendants rely heavily on the Second Circuit’s decision in Parker v. Sony Pictures Entm’t, Inc.,
The Second Circuit first made clear in Parker that “[i]n employment discrimination cases that do not turn on the employer’s provision of a reasonable accommodation, the plaintiffs ultimate burden is always to show that the protected characteristic in question played a motivating role in, or contributed to, the employer’s decision.” Id. (internal quotation marks omitted) (emphasis added). Here, Seal-era’s case does turn on the Defendant employer’s provision of a reasonable accommodation, leading to a different analysis.
The court in Parker also noted that a plaintiff must prove a causal connection between an employer’s failure to provide a reasonable accommodation and his discharge. Id. However, what the Defendants overlook in Parker — and what the Second Circuit went on to clarify — is that in situations where a plaintiff was unable to return to work because the defendant did not provide a reasonable accommodation and the defendant fired the plaintiff because he failed to return to work, “[s]uch a causal connection between disability and discharge satisfies the ‘motivating factor’ requirement.” Id. at 108. Therefore, the court held that “it remains essential to a finding of discrimination that plaintiffs disability, or the lack of accommodation to that disability, played a substantial role that made a difference to his employer’s action.” Id. (internal quotation marks omitted).
Comparing the Parker case to the current action shows how the analysis and holdings in Parker are not controlling here. Unlike Parker, Plaintiffs disability discrimination case turns solely on the employer’s failure to provide a reasonable accommodation. While Scalera was ultimately terminated, she does not allege in the Second Amended Complaint that she was fired because Electrograph failed to provide a reasonable accommodation that would have allowed her to return to work.
The lack of a plaintiffs need to show discriminatory intent in reasonable accommodation cases was also noted by the First Circuit in the case Higgins v. New Balance Athletic Shoe, Inc.,
Unlike other enumerated constructions of “discriminate,” [the reasonable accommodation] construction does not require that an employer’s action be motivated by a discriminatory animus directed at the disability. Rather, any failure to provide reasonable accommodations for a disability is necessarily “because of a disability” — the accommodations are only deemed reasonable (and, thus, required) if they are needed because of the disability — and no proof of a particularized discriminatory animus is exigible. See Bultemeyer v. Fort Wayne Community Schs.,100 F.3d 1281 , 1283-84 (7th Cir.1996). Hence, an employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter what its intent, unless it can show that the proposed accommodations would create undue hardship for its business. 42 U.S.C. § 12112(b)(5)(A)
Here, liability is premised on the failure of Defendants to provide Plaintiff two alleged reasonable accommodations — not pursuant to any alleged adverse employment action taken against the Plaintiff because of a requested accommodation. Therefore, Defendants’ argument that Scalera must show that her disability was a motivating factor in the employer’s decision not to provide a reasonable accommo
Turning now to the actual elements of Plaintiffs prima facie case, Defendants readily concede that the first two elements are met. Therefore, Scalera must, at a minimum, come forward with evidence that can lead a reasonable jury to conclude that the Plaintiff has met her burden in showing that she can perform the essential functions of the position with or without reasonable accommodation and that the employer has refused to make a reasonable accommodation.
2. Essential Functions of the Job
A plaintiff who brings an action under the ADA for failure to make reasonable accommodations must establish that he or she can perform the essential functions of the job, either unaided or with the assistance of a reasonable accommodation. See 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n); see also Lyons,
Instead, Defendants contend that the Plaintiff did not need the requested accommodations to do her job because neither requested accommodation had anything to do with her job duties.
As an initial matter, courts have recognized that the essential functions of a job are much broader than those duties that are specifically tied to the particular position the employee is hired to fulfill. Indeed, one such essential function of an employee’s job is showing up for work.
It is worth spending a moment reviewing the facts and holding in Lerman. Although the holding is not binding, the Court nonetheless finds the reasoning persuasive. In Lerman, the plaintiff argued that being able to use the bathroom at work was essential to his job since he could not go home every time he needed to use the restroom. Id. at *4. Based on severe injuries to his back and spine, Lerman was forced to use a wheelchair. Id. at *1. During the training program for his new job as a telemarketer, Lerman needed to use the bathroom and when he went to do so, he was unable to access the toilet because he could not get his wheelchair close enough to do a slide-across transfer. Id. at *1 n. 3. Nor could he get close enough to utilize the one grab bar in place beside the toilet. Id. Lerman stated that he similarly could not get to the sink because his knees would not fit under it while he was in the wheelchair. Id. Likewise, the one paper towel dispenser was at a height where he could not access it. When Lerman reported the difficulties, his manager purportedly recommended that he use the bathroom of neighboring businesses or that he contact the defendant’s corporate offices. Lerman,
Plaintiff has presented evidence that he alerted his employer that he was unable to use the bathroom at the office due to his disability and that he could be accommodated if Defendant made the restroom accessible to him....
The Court finds that being able to use the restroom at work can allow an employee to perform the essential functions of the job. Here, it could be the essential function of being present at the job. Thus, genuine issue of material fact remain as to whether a “reasonable accommodation,” which would have allowed Plaintiff to perform an essential job function was not provided, and summary judgment is inappropriate on this ground.
Id. at *4-5 (citations omitted).
In the instant case, Scalera testified at her deposition that based on her disability, she experienced great difficulty using a toilet unless it was at a raised height, approximately 18 inches from the ground. See Decl. of Timothy P. Coon, Ex. C (hereafter referred to as “Scalera Dep.”) at 107-112; see also June 10, 2011 Decl. of Mary Kay Scalera (“Scalera Decl.”) ¶ 7. According to the Plaintiff, the toilets in Electrograph’s women’s restroom were all standard height, approximately 12 inches tall. Whenever she used the toilets, Scalera stated that she experienced significant strain and pain. Scalera Dep. at 109, 119— 20; Scalera Decl. ¶ 8. When Plaintiff first started at Electrograph, there was a steel hand bar in one of the stalls in the women’s restroom which she used to lower herself and then raise herself. Scalera Dep. at 114-15; Scalera Decl. ¶ 9. Plaintiff testified that she spoke with Defendant Koziol around December 2005 and explained she needed a higher toilet in the
According to the Plaintiff, Koziol said the restroom was going to be renovated and would be made handicap compliant. Scalera Dep. at 112; Scalera Decl. ¶ 11. In that same conversation, Koziol advised the Plaintiff that she could use the executive bathroom. However, Plaintiff says she explained to Koziol that such an option would not work because the toilet in the bathroom was the same height as the women’s restroom and there was no hand bar. Scalera Dep. at 112; Scalera Decl. ¶ 12. Plaintiff spoke to Koziol a second time about a raised toilet and Koziol confirmed that a higher toilet would be installed. Scalera Dep. at 116-17; Scalera Decl. ¶ 13. Scalera further stated that when the renovations were completed, all of the toilets were the same height as the old toilets and no handicap toilet had been installed. Scalera Decl. ¶ 15. Koziol confirmed during her deposition that none of the new toilets installed as part of the renovation were specifically for a handicapped person. See Decl. of Timothy P. Coon, Ex. E (hereafter referred to as “Koziol Dep.”) at 53. In addition, Scalera testified that the hand bar had been removed and was not replaced while she was still employed. Seal-era Dep. at 116. As a result, the Plaintiff testified that she often tried to hold in the urge to go to the restroom, resulting in stomach cramps. Scalera Dep. at 108-109; Scalera Decl. ¶ 18. Koziol testified that Plaintiff told her during a conversation in December 2005 that she had “trained herself not to go to the bathroom.” Koziol Dep. at 33.
Former Electrograph employee Carolyn Reutter, a computer programmer at Electrograph for ten years, has corroborated the Plaintiffs testimony that the toilets in both the executive bathroom and the women’s restroom were all standard height, not raised. See June 6, 2011 Decl. of Carolyn Reutter (“Reutter Decl.”) ¶ 10. After the renovation of the women’s restroom, none of the toilets were higher, the restroom was not handicap accessible, and the hand bar had been removed. Id. ¶ 13. Paulette Johnston, another Electrograph employee until she retired in 2007, states that she spoke with the Plaintiff about the problem with the low toilet seats in the women’s bathroom. See April 30, 2010 Decl. of Paulette Johnston (“Johnston Decl.”) ¶¶ 7-9. In April 2007, the Plaintiff asked Johnston to take pictures of the stalls in the women’s restroom. Id. ¶ 12. She did so. At that time, there was no railing or steel bar in any of the stalls. Id. ¶¶ 13-14. Ms. Johnston adds that there was no railing in the women’s bathroom at the time of Plaintiffs fall outside the building. Id. ¶ 14.
Defendants maintain that prior to the restroom renovations in December 2005, Defendant Koziol had a conversation with the Plaintiff which Koziol offered to relocate Plaintiffs cubicle to a spot closer to the ladies room. Koziol says the Plaintiff declined because her cubicle was closer to the side door where she entered and exited the building. See Koziol Dep. at 33. Based on that conversation, Koziol asserts that on her own initiative, she offered Plaintiff use of the executive bathroom because it was closer to her cubicle and she got permission from Defendants Gordon and Smith to do so. Koziol Dep. at 38^41, 50-51. Koziol denies that Plaintiff ever asked her for higher seating in the bathroom. Id. at 38-39. Taking all of this information into account, it is clear that a genuine issue of material fact remains as to whether a “reasonable accommodation” which would have allowed Plaintiff to perform an essential job function was not provided. This Court concurs with the findings in Lerman that being able to use
It is also the Court’s view that Defendants’ interpretation of the ADA is too narrow. As the Court will discuss infra, 29 C.F.R. § 1630.2(o )(1)(iii) “requires employers to make modifications and adjustments, not just to minimally permit disabled employees to do their job, but also to permit them to enjoy all of the ‘benefits and privileges’ of the job as would any other employee.” E.E.O.C. v. Life Techs. Corp., No. 09-2569,
3. Refusal to Make a Reasonable Accommodation
The parties clearly dispute whether Plaintiff actually made the two requested accommodations. However, it is not disputed that Electrograph did not install raised toilets or a hand rail at the side entrance to the building, even if Plaintiff did make such requests. With regard to this required element of “refusal” in establishing a prima facie case, however, there are other factors for a court to consider. For instance, key to the determination of whether a plaintiff has established this element is whether the requested accommodation, which the employer has refused or otherwise failed to make, is reasonable.
Regarding the requirement that the requested accommodation be reasonable, a plaintiff “bears only a burden of production.” Borkowski v. Valley Cent. Sch. Dist.,
The Court notes that significant guidance has been provided by the statutory and regulatory provisions of the ADA which helps define the term “reasonable accommodation” and sets forth a nonexclusive list of what may be considered to be reasonable accommodations. The term “reasonable accommodation” means “[mjodifications or adjustments to the work environment ... that enable an individual with a disability who is qualified to perform the essential functions of that position” as well as “[mjodifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” 29 C.F.R. §§ 1630.2(o )(1)(ii)-(iii). Therefore, a reasonable accommodation may include “making existing facilities used by employees readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12111(9)(A); 29 C.F.R. § 1630.2(o )(2)(i).
Although the parties dispute whether Scalera ever requested higher seating in the women’s restroom or that a hand rail be installed near the steps of the side entrance, a jury could reasonably credit the testimony of the Plaintiff and non-party employee Carolyn Reuter that such requests were made. Moreover, in light of what is considered to be a reasonable accommodation under the ADA, and Defendants’ concession that installing raised seating in the women’s restroom or a hand rail would not have posed an undue financial hardship, a rational jury could find that the two requests for accommodation in this case, both of which go to making the Hauppauge office readily accessible to and usable by the disabled Plaintiff, were reasonable.
Defendants, however, maintain that Plaintiff did not need the requested accommodations. With regard to the hand rail at the side entrance, Defendants argue that Scalera was able to enter and exit the building through the side entrance with the use of her cane and the assistance from other Electrograph employees. Moreover, Defendants highlight the fact that Plaintiff could have entered or exited the building through the front entrance. As for the higher toilets, Defendants also assert that this was not necessary since Scalera had toilets in her house at the same height as those in the Electrograph bathroom.
To establish a prima facie case of discrimination for failure to make a reasonable accommodation, the Sixth Circuit explicitly lists as an element of the claim that the “accommodation was needed.” Benaugh v. Ohio Civil Rights Comm’n.,
Another consideration for the Court, which relates to the last element of Plaintiffs prima facie case, is Defendants’ contention that Electrograph provided Plaintiff with five other reasonable accommodations. The accommodations Defendants claim to have provided the Plaintiff are the following: (1) a chair of Plaintiffs choice; (2) the ability to enter and exit through the side entrance; (3) the parking spot closest to the side entrance; (4) use of the executive bathroom; and (5) physical assistance from employees entering and exiting the building. While the ADA “does not require the employer to provide every accommodation a disabled employee may request,” it does require that “the accommodation provided is reasonable.” D’Eredita v. ITT Corp.,
Defendants maintain that the five accommodations provided to Plaintiff warrant summary judgment in their favor. To support this contention, Defendants direct the Court’s attention to Trepka v. Bd. of Educ. of Cleveland,
The facts of this case, however, clearly distinguish it from Trepka, where the uncontroverted record showed that Trepka received two alternative accommodations. Here, Plaintiff challenges each and every purported accommodation provided by the Defendants on one of two grounds' — either such an accommodation was not provided or the provided accommodation was inadequate. First, Plaintiff disputes that the parking spot closest to the side entrance was provided to her by Electrograph as a reasonable accommodation. Scalera claims that nobody spoke to her about the use of this spot. Instead, Plaintiff maintains that she just tried to park as close as possible to the building. Scalera states that Electrograph did not have handicapped parking. Scalera Decl. ¶ 20. When asked at her deposition “Were there any designated handicapped parking spaces at Electrograph,” Plaintiff responded “No.” Scalera Dep. at 80. Defendants have produced no evidence to the contrary. Former employee Paulette Johnston adds some support for Plaintiffs position. In
Citing Trepka, the Defendants maintain that they gave the Plaintiff physical assistance during her nine months as an Electrograph employee. See Defs.’ Mem. at 9. Specifically, Defendants state that
Virtually every day, as Plaintiff was entering or exiting the building, an Electrograph employee would manually assist her by, for example, holding open the side door, or carrying her purse for her. Defendant GORDON physically assisted Plaintiff.
Defs.’ 56.1 Stmt. ¶ 37. According to Defendants, they offered Plaintiff “an alternative to the handrail” by providing Plaintiff personal assistance entering and exiting the building virtually every day. Defs.’ Mem. at 13. Plaintiff admits that she received physical assistance from friends and colleagues at Electrograph, but notes that the individuals did so on their own volition or because she asked them for assistance. Scalera Dep. at 146-48; Scalera Deck ¶ 29. Carolyn Reutter confirmed that she voluntarily helped the Plaintiff and that “Electrograph management did not instruct or ask me to assist Mary Kay. I chose to provide assistance to Mary Kay.” Reutter Deck ¶ 19.
Regarding the executive bathroom, Plaintiff does not dispute that she was permitted to use it. However, it is Plaintiffs position that the executive bathroom was not an accommodation at all because the toilets in that bathroom were the same height as those in the women’s restroom. Finally, while Scalera does not dispute that she was provided a desk chair and the use of the side entrance to the building, she argues that these accommodations were not alternatives to the two unfulfilled requests for accommodations, since they did not address the same needs. Cf. Gronne,
In light of these clearly disputed facts, and viewing such facts in a light most favorable to the Plaintiff, the Court finds that summary judgment is not appropriate on the question of whether the Defendants reasonably accommodated Plaintiffs disability with the five alleged accommodations provided. Such a determination is therefore left to the trier of fact.
B. Interactive Process
Defendants also argue that summary judgment is appropriate because Defendants engaged in the interactive process with Plaintiff and provided her with reasonable accommodations. As the Court has already addressed Electrograph’s contention that it provided Scalera with reasonable accommodations, the Court briefly turns to the “interactive process” to which Defendants refer. The federal regulations implementing the ADA state the following:
To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
29 C.F.R. § 1630.2(o )(3); see also Jackan v. N.Y. State Dep’t of Labor,
meet[ing] with the employee who requests an accommodation, requesting] information about the condition and what limitations the employee has, ask[ing] the employee what he or she specifically wants, showing] some sign of having considered [the] employee’s request, and offering] and discussing] available alternatives when the request is too burdensome.
Taylor v. Phoenixville Sch. Dist.,
Defendants argue that the evidence illustrates their good faith effort to engage in the interactive process with the Plaintiff. Even accepting this statement as true, Defendants fail to show how simply engaging in the interactive process somehow shields Electrograph from liability and warrants summary judgment being granted in Defendants’ favor.
Here, Defendants do not argue that the interactive process broke down in any way or that Plaintiff did not participate in good faith. Instead, Defendants merely highlight instances from the record which support the contention that they participated in the interactive process. Plaintiff, on the other hand, argues that there is evidence the Defendants did not properly engage in the interactive process. Counsel for the Defendants points to Rose Ann Gordon, Electrograph’s HR Director, as the person in charge of determining what accommodations should be provided to employees. See Defs.’ Mem. at 19. Gordon testified that she never spoke to the Plaintiff directly about accommodations the Plaintiff needed. Deck of Timothy P. Coon, Ex. F (hereafter referred to as “Gordon Dep.”) at 63. Plaintiff claims, however, that she spoke with Gordon and requested the installation of a railing at the side entrance. Scalera Dep. at 130-32. Scalera testified that she followed up with an e-mail to Gordon but never got a response and, after that, Gordon avoided her. Id. Scalera stated that when she spoke with Gordon again about the railing several months later, Gordon did not respond. Id. at 148-49. Based upon the totally conflicting versions of what occurred here, the question of whether Defendants engaged in the interactive process is again one left for a jury.
C. Individual Liability under NYHRL
Defendants also argue that Defendants Gordon, Smith and Koziol cannot be held individually liable under either Section
“The Second Circuit, interpreting the relevant decisions of the New York Court of Appeals, has held that individual, civil liability is established under NYSHRL when any one of three conditions is met.” Messer v. Fahnestock & Co., No. 03-CV-4989,
An individual can also be held liable under § 296(6) when he or she “actually participates in the conduct giving rise to a discrimination claim.” Tomka v. Seiler Corp.,
Specifically addressing HR Director Gordon, Defendants maintain that she should not be individually liable under Section 296(1) since she had no pecuniary interest in Electrograph. Plaintiff counters that Gordon was part of Electrograph’s management, and, based on testimony from Defendant Smith, there is evidence that she had an ownership interest. After reviewing Smith’s testimony, the Court finds no evidence to support Plaintiffs position that Gordon had an ownership interest in Electrograph. Defendant Smith testified that “members of management” owned approximately 20 percent of Electrograph. Smith Dep. at 16-17. Lacking from his testimony and the record as a whole, however, is any evidence to support the statement that Defendant Gordon was one of those members of management who had an ownership interest. Failing to proffer any such evidence, the Court finds Plaintiffs argument to be without merit.
Nevertheless, Gordon can still be considered an “employer” if she maintained the power to do more than carry out personnel decisions made by others. Defendants assert that Gordon did not have the authority to do more than carry out routine personnel decisions made by others. The Court notes that authority to hire and/or fire employees is but one of four elements for a court to consider under the “economic realities” test. See Picinich,
Gordon testified that her day-to-day responsibilities included overseeing her staff regarding such topics as recruitment, employee relations, compensation, education, training and safety. Gordon Dep. at 15. Although Gordon testified that Carol Di-now was responsible for hiring all new employees, Gordon was her direct supervisor. Id. at 34. Specifically on the topic of hiring the Plaintiff, Gordon conceded that she was “somewhat” involved in this decision and explained that Dinow conferred with her about Scalera and others. Id. at 49. Regarding terminations, Gordon stated that Dinow became involved after being trained by her. Id. at 35. However, Gordon acknowledged that the decision to terminate Scalera was hers. Id. at 124. The record also reflects the fact that Gordon had the power to determine rates of payment and that she maintained the personnel files of all employees at the Electrograph Hauppauge office. Id. at 55 (Gordon approved a raise given to Plaintiff); Decl. of Michael D. Palmer, Ex. H (Feb. 4, 2009, Decl. of Rose Ann Gordon) ¶3 (“As director of Human Resources I maintained the personnel files for all employees at the Hauppauge offices.”).
Although the record is replete with questions of fact over the requested accommodations, the record could support a finding of liability under Section 296(6) as well. Plaintiff testified that in November 2005, she spoke to Gordon and requested that a railing be installed at the side entrance. See Scalera Dep. at 130-32, 148. It is Plaintiffs testimony that she first attempted to follow up by e-mail to Gordon
In light of the apparent powers Gordon maintained, coupled with the disputed facts surrounding Gordon’s conversations with the Plaintiff regarding the requested accommodations, the Court finds that summary judgment is not warranted.
2. Koziol
Defendants claim that Koziol, like Gordon, did not have the authority to do more than carry out routine personnel decisions. Although Plaintiff does not present as strong a case against Koziol as she did against Gordon, the Court finds enough support in the record to allow a jury to determine whether Koziol should be held individually liable.
Defendants claim that Koziol was not Plaintiffs manager, was not involved in the decision to hire or fire Plaintiff, and had no control over employees in other departments. The Court, however, fails to see the relevance of these contentions. The requirement for individual liability ■ is whether the particular individual had the ability to do more than carry out personnel decisions, including the power to hire and fire employees and supervise and control employee conditions of employment, not that this individual actually used such powers with the plaintiff. That being said, the record provides little on the powers Koziol actually possessed.
Koziol served as the Director of Operations for Electrograph, which put her in charge of the warehouse, purchasing, reverse logistics as well as security and maintenance for the Electrograph facilities. See Koziol Dep. at 14-15. According to Koziol, the employees from these departments reported up to a manager, who reported to her. Id. at 14. While this testimony could support the argument that Koziol had the power to supervise and control certain employee work schedules and conditions of employment, the record is bare with respect to the other elements of the economic realities test.
However, the record could support a finding of liability under Section 296(6). It is undisputed that Koziol was in charge of the maintenance of all Electrograph facilities. Defendant Smith testified that “[i]f there was going to be a change to the facility, it would have gone through [Koziol’s] organization.” See Decl. of Timothy P. Coon, Ex. D (hereafter referred to as “Smith Dep.”) at 49. Plaintiff testified that in December 2005, she spoke with Koziol about the women’s restroom and explained that she needed a higher toilet. Scalera Dep. at 110-12. According to Plaintiff, this conversation was followed up with another conversation about the need for higher toilets. Id. at 116-17. While these conversations are in dispute, the fact that higher toilets were not installed, is not. Therefore, if a jury credits Plaintiffs testimony and concludes that Koziol contributed to Electrograph’s failure to make reasonable accommodations for Plaintiff, liability under Section 296(6) would attach. As such, Defendants’ motion for summary judgment in favor of Defendant Koziol is denied.
3. Smith
Defendants readily admit that Smith qualifies as an “employer” under the
The Court fails to see how this contention would altogether shield Smith from being individually liable under Section 296. At best, this argument would support a finding that Smith would not be individually liable under Section 296(6), which requires actual participation in the conduct giving rise to the alleged discrimination. However, Defendants’ assertions are irrelevant to an analysis under Section 296(1), which is a “direct liability” provision. See Mugavero v. Arms Acres, Inc., No. 03 Civ. 5724,
D. Remaining Arguments
As a last resort effort to have this case dismissed, Defendants claim that Scalera: (1) has unclean hands because she intentionally fell down the stairs since she was afraid of losing her job; and (2) abused the legal system. The Court finds that neither argument has merit.
The sole “evidence” to support Defendants’ unclean hands argument is testimony from Plaintiffs supervisor, Paul Batterson. Batterson testified that Carolyn Reutter told him that Scalera told her that the Plaintiff intentionally planned to fall down the stairs. See Decl. of Michael D. Palmer, Ex. F (“Batterson Dep.”) at 72-73, 77-78. Despite Defendants’ attempts to show how this statement is admissible under various hearsay exceptions, the Court sees no combination of hearsay exceptions which would make this statement admissible under Rule 805 of the Federal Rules of Evidence. In addition, Scalera and Reutter categorically deny making these alleged statements. Reutter Decl. ¶¶ 32-33; Scalera Decl. ¶ 45. Accordingly, there is no admissible evidence to support such an argument.
Regarding the alleged abuse of the legal system, the fact that Plaintiff has
V. Conclusion
For the reasons discussed above, Defendants’ motion for summary judgment is DENIED in its entirety. The parties are directed to participate in a telephone conference on April 27, 2012, at 4:00 p.m. Plaintiffs counsel is directed to initiate the call to Chambers.
SO ORDERED.
Notes
. Plaintiff was initially diagnosed with muscular dystrophy. That diagnosis was amended to Pompe Disease in January 2008.
. This conversation occurred two months pri- or to the Hauppauge officé being renovated, which took place in February 2006. Defs.’ 56.1 Stmt. ¶ 30.
. Scalera asserts that she specifically told Koziol that the "executive bathroom" would not be an accommodation because the toilet was the same height as those in the women's restroom and the "executive bathroom” did not contain a hand bar. Pl.’s 56.1 Stmt. ¶ 32.
. Reasonable accommodation claims under the NYHRL are governed by the same legal standards as the federal ADA claims. See Graves v. Finch Pruyn & Co.,
. In this section of their brief, Defendants also argue that they were not required to
. Because the events giving rise to Plaintiffs claims occurred prior to January 1, 2009 (the effective date of the ADA Amendments Act of 2008), the older version of Section 12112 applies. See Wega v. Ctr. for Disability Rights, Inc.,
. Defendants also rely on Goenaga v. March of Dimes Birth Defects Found.,
. The Court is compelled to address briefly Plaintiff’s contention that she is not required to show that Defendants acted with discrimi
. The Court will address Defendants' other "needs-based” arguments infra.
. Defendants maintain that the ADA does not require an employer to accommodate an employee who cannot get to work. The cases cited by Defendants which support this position involved a plaintiff who was unable to arrive at work in the first instance. See Gronne v. Apple Bank for Sav., No. 98-CV-6091,
. The Court notes that this fact is disputed by the Plaintiff. Therefore, even if Defendants’ argument was a valid one, the Court would not be in a position to grant summary judgment regarding the requested accommodation for higher toilets.
. The Court notes that the opposite holds true as well. An employer's failure to engage in a sufficient interactive process does not allow a plaintiff to avoid summary judgment on its own either. See Sclafani v. PC Richard & Son,
. Because the same holds true for Defendant Koziol, the Court will not address this argument further.
. Even had there been admissible evidence, Defendants’ unclean hands argument would fail because such a defense cannot be asserted against claims involving money damages and the defense was not properly pled in the answer. See Herman v. Nat'l Enter. Sys., Inc., No. 07-CV337S,