RICHARD STRYKER, Plаintiff, - against - HSBC SECURITIES (USA), ET AL., Defendants.
16-cv-9424 (JGK)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
08/31/20
JOHN G. KOELTL, District Judge
JOHN G. KOELTL, District Judge:
The plaintiff, Richard Stryker, brings this action pro se against his former employers, HSBC Securities (USA), Inc., and HSBC Bank USA, N.A. (collectively, “HSBC“) and individual defendants, Andrew Ireland, Daniel Anniello, Shalini Guglani, and Peter Foglio. The plaintiff alleges that he was disabled by mental illness, that the defendants discriminated against him because of his disability, failed to accommodate the plaintiff‘s mental illness, created a hostile work environment, and retaliated against the plaintiff when he complained about the discriminatory treatment. The plaintiff alleges violations of the Americans with Disabilities Act (“ADA“),
I.
The standard for granting summary judgment is well established. “The 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.”
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if any evidence in the record from any source would enable a reasonable inference to be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
II.
The following facts are undisputed unless otherwise indicated.
The plaintiff is a former employee of HSBC. Defs.’ 56.1 Stmt. ¶ 1. On September 8, 2015, the plaintiff began his employment with HSBC as a Premier Relations Advisor (“PRA“),
The individual defendants, Andrew Ireland, Daniel Anniello, Shalini Guglani, and Peter Foglio, are employees of HSBC. Id. at ¶¶ 3-6. Guglani was the plaintiff‘s supervisor from October 2015 until the plaintiff‘s termination, and Anniello was Guglani‘s supervisor from early 2017 until Stryker‘s termination. Id. at ¶¶ 3-4. Ireland was the Regional Head of Wealth at HSBC from the plaintiff‘s emрloyment until January 2017, and Foglio was the Wealth Sales Coach in the plaintiff‘s district from the plaintiff‘s employment until his termination. Id. at ¶¶ 5-6.
The plaintiff‘s responsibilities as a PRA required him to provide financial services to “Premier clients,” who were customers who met certain criteria set by HSBC, and to “acquire, develop, advise, and retain a portfolio of Premier clients.” Id. at ¶¶ 28-30; Declaration of Rhonda Toft (“Toft Decl.“) ¶ 12, Ex. L. The job description of a PRA states that PRAs must “work as part of an integrated branch management team” and “[c]omplete all activity documentation to provide a record for performance tracking.” Toft Decl., Ex. L. Each PRA must manage a portfolio of clients initially assigned by HSBC and develop new clients
HSBC uses “Key Performance Indicators” (“KPIs“) – Activity KPIs and Outcome KPIs, to evaluate the performance of PRAs. Defs.’ 56.1 Stmt. ¶ 32. Activity KPIs include (1) Client Appointments; (2) Financial Rеviews; and (3) Needs Fulfilled, whereas Outcome KPIs include (1) Net New Money; (2) Net Premier Client Growth; and (3) Recurring & Income Growth. Id. at ¶ 34. PRAs are required to submit client interactions through the “Relationship Management Platform” (“RMP“), an internal recordkeeping platform; HSBC tracks Activity KPIs solely based on data entered into the RMP by PRAs. Id. at ¶¶ 35-38. HSBC trained the plaintiff on the use of the RMP at the beginning of his employment. Id. at ¶ 39.
The plaintiff began working at HSBC‘s SoHo branch in September 2015, and Guglani became the plaintiff‘s supervisor in
The plaintiff took a medical leave of absence from December 2015 to April 2016, but returned to work for a two-week period from late January to early February 2016. Id. at ¶¶ 46-49; Defs.’ 56.1 Stmt. ¶ 47. The plaintiff testified that as of February 2016, HSBC was very understanding of his needs. Pl.‘s 56.1 Stmt. ¶ 49; Declaration of C. Bryan Cantrell dated September 23, 2019 (“Cantrell Decl.“), Ex. A (“Stryker Dep.“). The plaintiff did not meet his Activity KPIs during the last quarter of 2015, but the plaintiff‘s performance was rated “Not Applicable: Too Soon” for the quarter. Pl.‘s 56.1 Stmt. ¶¶ 50-51; Defs.’ 56.1 Reply Stmt. ¶¶ 50-51. The plaintiff states that in February 2016, when the plaintiff was on leave, Guglani emailed HR to discuss moving the plaintiff intо a “Financial Advisor” (“FA“) role upon the plaintiff‘s return. Stryker Decl. ¶ 28, Ex. K.
The parties dispute whether the plaintiff properly used Time Off Program (“TOP“) time. After the plaintiff‘s return to work in April 2016, the plaintiff took two TOP days. Defs.’ 56.1 Stmt. ¶¶ 54-55. At 7:32 a.m. on May 27, 2016 and 8:30 a.m. on June 8, 2016, the plaintiff notified Guglani that he was using TOP that day. Toft Decl. ¶¶ 18-19, Exs. T, U. Neither email indicates that the TOP day was taken for purposes of an emergency. The defendants argue that the TOP was improperly scheduled; HSBC has a written company policy that “TOP time must first be approved by your manager and scheduled at least by the start of the business day for which you are using TOP, or in advance, to the extent possible” and that employees may only use
From May through July 2016, Guglani received feedback from multiple sources related to the plaintiff‘s underperformance, including not calling clients after repeated reminders to do so, being unprofessional to other employees in the office, and arriving in the office after 11 a.m. or 12 p.m. Toft Decl. ¶¶ 20, 22, Exs. V, X. The plaintiff disputes the accuracy of the substance of the feedback, and states that the feedback was taken out of context, was an inaccurate reflection of workplace conditions, and was given by individuals not trained to give feedback. Pl.‘s 56.1 Stmt. ¶¶ 56-59.
On July 25, 2016, Guglani gave the plaintiff a rating of “Off Track” in the plaintiff‘s 2016 mid-year review and issued the plaintiff a Written Warning for unsatisfactory performance.
Three days after the issuance of the Written Warning, on July 28, 2016, the plaintiff wrote an email to Ireland, copying
The plaintiff‘s internal complaint was referred for investigation to Rhonda Toft, Vice President, Employee Relations Specialist. Toft Decl. ¶¶ 1, 27. The plaintiff told Toft that evidence of discrimination included having a smaller portfolio than his peers; that his mid-year review had come only three months after his leave of absence ended, and because three months was not enough time to meet his goals, the review must have been motivated by discriminatory reasons; and that Guglani had made several comments about not giving the plaintiff a bonus. Toft Decl. ¶ 27, Ex. BB. The plaintiff did not provide Toft with any further evidence of his claims. Id. Toft noted in
In August 2016, other employees of HSBC reported to Guglani instances of the plaintiff‘s missing client appointments and internal meetings due to unexpected or unapproved TOP; not showing up for work or taking long intermittent breaks
On February 2, 2017, the plaintiff reported to Guglani that he was cleared by his heаlthcare providers to return to work on a part-time schedule of 20 hours per week, consisting of five hours a day from Monday through Thursday, with 10 hours at the office and 10 hours at home. Toft Decl. ¶ 31, Ex. EE. The plaintiff also indicated that the healthcare provider-mandated work schedule could not be modified in any manner. Id. The accommodation request was formally submitted on February 6, 2017 and was certified by the plaintiff‘s psychologist. Cantrell Decl. ¶ 12, Ex. K. The psychologist stated that the plaintiff was suffering from “a major depressive episode that is part of a long-term major depressive disorder.” Id. The psychologist noted that depression can affect concentration as well as promote procrastination out of fear of negative performance and/or consequences. Id. The psychologist stated that a 20-hour workweek that divides duties between home and office “should
HSBC soon responded that it could not grant the plaintiff‘s request for compliance reasons, because HSBC had a regulatory obligation to supervise the plaintiff‘s sale of securities products and could not do so while the plaintiff worked from a remote location. Toft Decl. ¶ 30. The plaintiff argues that HSBC employees were able to perform significant portions of their positions’ requirements frоm home, such as using mobile phones to communicate with clients and accessing the intranet with their laptops. Pl.‘s 56.1 Stmt. ¶ 89; Stryker Decl. ¶ 61. As an alternative, HSBC offered the plaintiff (1) a change in title and role from PRA to FA; (2) change in work site from one location to four locations; and (3) 20 hours a week in the office, from Monday to Friday, 8:30 a.m. to 12:30 p.m. Stryker Decl., Ex. Y. The plaintiff communicated over the next two weeks via telephone and email with HSBC‘s Human Resources staff and reviewed HSBC‘s proposal with his healthcare providers. Id. On March 9, however, the plaintiff informed the defendants that he would return to work on a full-time schedule on March 20, pending doctor approval, and confirmed that he would not be seeking the original accommodation of a reduced number of hours. Id.
Four days after returning to work, on March 24, 2017, the plaintiff requested a base salary raise from $75,000 to $100,000 from Anniello. Stryker Dep., 222:7 to 222:15; Cantrell Decl. ¶ 13, Ex. L. The plaintiff forwarded this email request to Guglani. Cantrell Decl. ¶ 13, Ex. L. Guglani promptly denied the plaintiff‘s request. Defs.’ 56.1 Stmt. ¶ 104. Guglani then emailed the plaintiff on April 6, 2017, reminding him of company policies that TOP leaves must be planned unless in case of emergency, that the plaintiff should inform Guglani of any doctor‘s appointments in advance, and that absences for medical reasons may be covered under HSBC‘s leave policy. Tоft Decl. ¶ 34, Ex. GG. A day later, the plaintiff took an unscheduled day off because he was not feeling well and used TOP. Id. at ¶ 35, Ex. HH.
The plaintiff notified Guglani on April 17, 2017 that he intended to apply for jobs elsewhere within HSBC and asked Guglani for a positive recommendation. Id. at ¶ 36, Ex. II. Guglani denied the request, citing continued performance and
On May 1, 2017, the plaintiff had a meeting with a client at 11 a.m. at the Soho Branch, but told the banker at the branch that “I‘m not going to be in SoHo for the appt if he does come in and wants to speak conf me in.” Stryker Decl. Ex. GG. The plaintiff subsequently could not be reached by the banker when the client arrived. Toft Decl. ¶ 37, Ex. JJ. The next day, HSBC issued a Final Written Warning to the plaintiff. Defs.’ 56.1 Stmt. ¶¶ 109-111; Cantrell Decl. ¶ 14, Ex. M. The Final Written Warning cited various reasons for corrective action, including the plaintiff‘s failure to attend daily morning huddles and weekly collaboration meetings; to be responsive to his team regarding his comings and goings, including extended absences at lunchtime; taking many unplanned absences; completing only two client appointments in his first 30 days of work as a Financial Advisor; and other examples of unprofessional behavior. Cantrell Decl. ¶ 14, Ex. M. It asked for immediate and sustained improvement from the plaintiff. Id.
Two days later, on May 4, 2017, the plaintiff failed to show up at his assigned branch, and Guglani attempted to reach
III.
The plaintiff brings claims of disability discrimination, failurе to accommodate, retaliation, and hostile work environment in violation of the ADA against HSBC and in violation of the NYSHRL and the NYCHRL against all defendants.3 The plaintiff also brings claims of aiding and abetting and employer liability in violation of the NYSHRL and NYCHRL against all defendants. The defendants move for summary judgment dismissing all of the claims.
A. Claims against HSBC
1. Discriminatory Treatment Claims
The ADA makes it unlawful for an employer to discriminate “against a qualified individual on the basis of disability.”
a. Discriminatory Treatment Under the ADA and the NYSHRL
Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. See St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). The ADA and the NYSHRL require the same four elements to establish a prima facie case. See Kinneary v. City of New York, 601 F.3d 151, 158 (2d Cir. 2010). The plaintiff must demonstrate that: (1) his employer is subject to the statute, (2) he suffers from a disability or is perceived to suffer from such a disability within the meaning of the statute, (3) he could perform the essential functions of the job with or without a reasonable accommodation, and (4) he suffered an adverse employment action because of his disability. See, e.g., McMillan, 711 F.3d at 125; Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008). The plaintiff‘s burden at the prima facie stage is
If the plaintiff establishes a prima facie case, the burden of production shifts to the defendants to articulate a legitimate, nondiscriminatory reason for their adverse employment action. See St. Mary‘s, 509 U.S. at 506-07. The defendants’ burden at this stage is “one of production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotation marks and citation omitted). Finally, if the defendants make such a showing, the plaintiff then has an opportunity to show that the proffered reason was not the true reason for the employment decision. See St. Mary‘s, 509 U.S. at 507-08. The “burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also Reeves, 530 U.S. at 143. Ultimately, the plaintiff must “prove that discrimination was the but-for cause of any adverse employment action.” Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019); accord Corona v. Clarins U.S.A., Inc., No. 17-CV-4438, 2019 WL 4393082, at *5 (S.D.N.Y. Sept. 12, 2019) (applying the “but-for” analysis to both ADA and NYSHRL discrimination
The first and second elements of the plaintiff‘s prima facie case are satisfied. The defendants do not dispute that HSBC is subject to the ADA. They also do not dispute that the plaintiff suffered from a major depressive disorder, which was “a mental impairment that substantially limit[ed] one or more major life activities” of the plaintiff.
The defendants argue that the plaintiff has failed to meet the third and fourth elements of a prime facie case. They contend that the plaintiff was not qualified to perform the essential functions of his job, that he did not suffer an adverse employment action, and that if an adverse employment action was taken, it was not taken because of the plaintiff‘s disability.
To satisfy the third element, the plaintiff must demonstrate that he was qualified to perform the essential functions of his job. “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such
A plaintiff need only “make the minimal showing” that the plaintiff possessed “the basic skills necessary for performance of [the] job.” Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (internal citation and quotation marks omitted). The third prong of the McDonnell Douglas test should not be an opportunity for the employer to require the plaintiff to “anticipate and disprove the employer‘s proffer of a legitimate, non-discriminatory basis for its decision.” Id. at 696-97. In this case, the employer expressed a belief that the plaintiff was minimally qualified when it hired him, and thereafter when it determined at his first review that it was too early to rate his performance. This suggests that the plaintiff has met the minimally qualified prong of the McDonnell Douglas test. See also Hardekopf v. Sid Wainer & Son, No. 02-cv-3251, 2004 WL 2199502 at *6 (S.D.N.Y. Sep. 29, 2004).
The plaintiff argues that despite his disability, he was able to perform the essential functions of his job with a reasonable accommodation. In February 2017, in advance of the plaintiff‘s return from the second leave of absence, the plaintiff requested a reduced work schedule of 20 hours per week, evenly split on four workdays, with 10 hours spent working from home. The plaintiff provided a note from his psychologist that this accommodation “should allow the employee to gradually readjust to the demands of his job description.” Cantrell Decl. ¶ 12, Ex. K. The defendants reasoned that regulatory requirements regarding the supervision of the sales of securities precluded the plaintiff‘s ability to work from home and HSBC provided an alternative proposal that the plaintiff work a reduced schedule of 20 hours per week from the office and that the plaintiff be placed in the FA role at different branches. However, the plaintiff disputes this reasoning and argues that there were significant portions of the job that could be performed at home. Although the plaintiff voluntarily returned to work on a full-time basis, his doctor had noted the possibility of a reasonable accommodation that could allow the plaintiff to meet the job‘s demands. Because there are issues of
As to the fourth element, the plaintiff must also establish that he was subjected to an adverse employment action under circumstances giving rise to an inference of disability discrimination within the meaning of the statute. Davis v. N.Y.C. Dep‘t of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (per curiam). To qualify as an adverse employment action, the employer‘s action must be “materially adverse with respect to the terms and conditions of employment” and “must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. (citation and quotation marks omitted). Examples of materially adverse employment actions include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citation omitted).
The plaintiff alleges that he suffered a variety of adverse employment actions, including HSBC‘s (1) failure to provide him with an adequate client portfolio; (2) issuance of Written Warnings; (3) decision to “demote” the plaintiff from PRA to FA;
Because it is disputed whether the change from a PRA and to a FA role was a demotion and whether there were other PRA positions open upon the plaintiff‘s return to work, and whether the defendants were required to provide the plaintiff with a client portfolio or if the plaintiff was expected to develop his own portfolio, these actions could constitute adverse employment actions. It is also possible that the denial of a request for an increase in compensation and a good recommendation were discretionary and that the denial of a discretionary request is an adverse employment action. See id. at 235-36 (denial of discretionary bonus could be considered adverse employment action). As the Court of Appeals explained, simply because an employer‘s action is discretionary does not mean that its decision can be based on racial, religious, or disability
At the prima facie stage, a strong showing of temporal proximity between evidence of a plaintiff‘s disability and an adverse action can raise an inference of discrimination. See, e.g., Hardekopf, 2004 WL 2199502, at *6; Forde v. Beth Israel Med. Ctr., 546 F. Supp. 2d 142, 152 (S.D.N.Y. 2008) (noting that temporal proximity on its own may be sufficient to establish an inference of discrimination, but is insufficient to establish pretext). The plaintiff took a second leave of absence from August 2016 to March 2017. Immediately when he returned, many of the adverse actions, such as the alleged demotion, change in portfolio size, and denial of a request for increased compensation and recommendation, took place. The closeness in time between the defendant‘s return from his second leave of absence and the alleged adverse actions against him raises an inference of discrimination to satisfy the fourth step of the prima facie case.
Under the second step of the McDonnell Douglas framework, HSBC has provided legitimate and non-discriminatory reasons for all of the alleged adverse employment actions taken against the plaintiff. The defendants’ legitimate, nondiscriminatory reasons for the smaller size of the plaintiff‘s client portfolio were to
Guglani, the plaintiff‘s supervisor, explained that the plaintiff returned to work as a FA and not a PRA because she had filled the plaintiff‘s position as a PRA when he was on leave, and the FA position was the only opportunity available in her market when the plaintiff returned to work.
The plaintiff‘s history of poor performance prior to the plaintiff‘s return to work on March 20, 2017 provides legitimate, nondiscriminatory reasons for why Guglani declined to give the plaintiff a discretionary salary increase and positive recommendation for another position. The plaintiff‘s performance issues were documented in an Initial Written Warning, 2016 mid-year review, and various emails. At various points throughout the plaintiff‘s employment, Guglani discussed with the plaintiff the importance of arriving to the office in a timely fashion, communicating with other team members about the plaintiff‘s whereabouts, and abiding by TOP policies. The record reflects that the plaintiff had a variety of attendance issues. The plaintiff missed daily team huddles and weekly collaboration meetings, arrived at work late, and left his post without explanation or proper communication to other branch members. The plaintiff also used TOP days, even in the event of emergencies,
Under the third step of McDonnell Douglas, the plaintiff has raised issues of material fact as to whether one of the defendants’ proffered reasons for the alleged demotion from PRA to FA was a pretext for discrimination and was not the true reason for the decision. The plaintiff argues that there were three open PRA positions when he returned to work. Because this is directly contradictory to what the defendants claim was the reason for assigning the plaintiff to a FA position, the plaintiff has raised genuine issues of material fact as to
The remainder of the plaintiffs’ claims fail under step three of the McDonnell Douglas test. The plaintiff has not raised any evidence that the plaintiff‘s reason for having a smaller portfolio upon his return from leave was a pretext. The decisions not to provide a recommendation and ultimately, to terminate the plaintiff were amply supported by the record. The record reflects that the defendants tried to accommodate the plaintiff‘s disability by offering a part-time work schedule. The plaintiff took two disability leaves and the defendants provided the plaintiff with multiple trainings, a mid-year review and an Initial Written Warning, followed by a final Written Warning, to try to correct various attendance issues, lack of communication, underperformance, and the plaintiff‘s failure to input his activity into the RMP. Only after the progressive increase in addressing ways to improve the plaintiff‘s performance did the defendants terminate the plaintiff after he explicitly failed to show up to work, respond to Guglani‘s calls, and report to the meeting in May 2017. The
Accordingly, the plaintiff has raised issues of material fact only as to whether the change in position from PRA to FA was a demotion such that it was an adverse employment action and whether the reason proffered by the defendants for his change in position was a pretext. For all other claims, the plaintiff has failed to show that but for his disability, the adverse employment actions would not have occurred and no reasonable jury could find that the defendants intentionally discriminated against the plaintiff.
b. Discriminatory Treatment Under the NYCHRL
Courts should construe the NYCHRL “liberally for the accomplishment of the uniquely broad and remedial purposes thereof.” Mihalik, 715 F.3d at 109. “This task is not always uncomplicated, however . . . [because there is] no specific guidance concerning how the NYCHRL should be ‘construed liberally’ and independently of state and federal law in its particular applications.” Chauca v. Abraham, 841 F.3d 86, 87-88 (2d Cir. 2016) (emphasis in original). It is “unclear whether, and to what extent the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims.” Mihalik, 715 F.3d at 110 n.8. However, “the plaintiff need only show that her employer treated her less well, at least in part for a discriminatory reason,” and an employer “is entitled to summary judgment . . . only if the record establishes as a matter of law that ‘discrimination play[ed] no role’ in its actions.” Id. (emphasis in original); see also Corona, 2019 WL 4393082, at *6.
Although the NYCHRL has broad, remedial purposes, a plaintiff must still establish a prima facie case of discrimination under the NYCHRL. See Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 75 (2d Cir. 2015). If the plaintiff establishes a prima facie case, the defendant has the opportunity to offer non-discriminatory legitimate reasons for its actions. If the defendant does so, summary judgment for the defendant is appropriate “if no reasonable jury could conclude either that the defendant‘s reasons were pretextual, or that the defendant‘s reasons were not its sole basis for taking action, and that its conduct was based at least in part on discrimination.” Id. at 76 (internal quotation marks and citations omitted).
The more liberal standard of the NYCHRL does not alter the conclusion that the defendants offered non-discriminatory legitimate reasons for declining to provide a recommendation for the plaintiff, providing a smaller portfolio size upon the plaintiff‘s return from leave, and terminating the plaintiff. No
Accordingly, the defendants’ motion for summary judgment dismissing the plaintiff‘s disability discrimination claims against HSBC under the ADA, the NYSHRL, and the NYCHRL regarding the plaintiff‘s alleged demotion from PRA to FA is denied. The defendants’ motion for summary judgment dismissing all the plaintiff‘s other claims for disability discrimination against HSBC under the ADA, the NYSHRL, and the NYCHRL is granted.
2. Failure to Accommodate Claims
Under the ADA, the NYSHRL, and the NYCHRL, a failure to accommodate claim is a theory of discrimination analyzed under the McDonnell Douglas burden-shifting framework. See
The plaintiff has failed to satisfy the fourth element of a prime facie case of failure to accommodate.
a. Failure to Accommodate Claims Under the ADA and the NYSHRL
Under the ADA and the NYSHRL, an employer is not required to provide a perfect accommodation or the accommodation most strongly preferred by the employee, but is required to provide an effective reasonable accommodation. Noll v. Int‘l Bus. Machines Corp., 787 F.3d 89, 94 (2d Cir. 2015); see also Allen v. A.R.E.B.A. Casriel, Inc., No. 15-CV-9965, 2017 WL 4046127, at *8 (S.D.N.Y. Sept. 12, 2017). Where an employer has taken or offered meаsures to accommodate a disability, “the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is ‘plainly reasonable.‘” Noll, 787 F.3d at 94. To determine the appropriate reasonable
The plaintiff cannot show that under the ADA and NYSHRL, the defendants were responsible for a breakdown of the process of determining a reasonable accommodation. After the plaintiff sought to return to work on a part-time basis, with half of his time spent working from home, HSBC proposed that the plaintiff return on the same part-time basis but without working from home. The parties then communicated over the next two weeks by telephone and email and engaged in an interactive process where the plaintiff was able to review the defendants’ proposal with his healthcare providers. However, the plaintiff voluntarily returned to work on a full-time basis without pursuing his request for a part-time work schedule. Because the plaintiff voluntarily chose to return to work without seeking his accommodation, the plaintiff has failed to show that the defendants were responsible for the breakdown of any discussions. Moreover, for the same reasons discussed above, the
b. Failure to Accommodate Claims Under the NYCHRL
Under the NYCHRL, the employer also has a duty to engage in an interactive process aimed at reaching a reasonable accommodation. LeBlanc v. United Parcel Serv., No. 11-CV-6983, 2014 WL 1407706, at *18 (S.D.N.Y. Apr. 11, 2014). Under the NYCHRL, “reasonable accommodation” means broadly any “such accommodation that can be made that shall not cause undue hardship in the conduct of the [employer‘s] business.”
HSBC has shown that it is entitled to summary judgment on the plaintiff‘s claim of failure to accommodate under the NYCHRL. HSBC explained why the plaintiff‘s proposal for working part-time at home was not reasonable and offered an alternative accommodation of part-time work at the office. The plaintiff ultimately showed the reasonableness of working at the office
Accordingly, the defendants’ motion for summary judgment dismissing the plaintiff‘s failure to accommodate claims against HSBC under the ADA, the NYSHRL, and the NYCHRL is granted.
3. Retaliation Claims
The ADA, the NYSHRL, and the NYCHRL prohibit an employer from retaliating against an employee for opposing discriminatory conduct prohibited by the statutes. See
a. Retaliation Claims Under the ADA and the NYSHRL
To establish a prima facie case of retaliation under the ADA and the NYSHRL, the plaintiff must show that (1) he participated in a protected activity, (2) the employer was aware
The plaintiff has established the first three elements of his prima facie case. For the first element, “[e]mployees engage in protected activity when they have a good faith, reasonable belief that they have mаde a complaint opposing an employment practice made unlawful by . . . the ADA.” Salas v. New York City Dep‘t of Investigation, 298 F. Supp. 3d 676, 685 (S.D.N.Y. 2018) (citation and quotation marks omitted); see also Woldeselassie v. Am. Eagle Airlines/Am. Airlines, No. 12-CV-07703, 2015 WL 456679, at *8 (S.D.N.Y. Feb. 2, 2015) (discussing protected activities under the ADA and the NYSHRL). The plaintiff initially complained to the defendants about disability discrimination on July 28, 2016 and initiated this lawsuit in December 2016. These activities constitute protected activities under the ADA and the NYSHRL. Second, the defendants were aware of the plaintiff‘s complaint and lawsuit. Third, the
The plaintiff argues that the temporal proximity between his protected activities and adverse employment actions against him demonstrate causation. While a plaintiff “can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action,” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010), the temporal proximity must be “very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). Courts have found that one year was “too long a period of time for a jury to be able to infer a causal connection,” Natofsky, 921 F.3d at 353, and that “[s]ix months between protected activity and discharge is well beyоnd the time frame for inferring retaliatory causation.” Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005).
The plaintiff has failed to show a causal connection between the protected activity and many of the adverse
Furthermore, the plaintiff had a history of performance and attendance issues, which the defendants had already documented and notified the plaintiff of in emails, a mid-year review, and an Initial Written Warning before the plaintiff made his initial complaint in July 2016. “[W]here the adverse action was already ongoing at the time of the protected activity, or is very similar to another adverse action that was taken before the protected activity, with no other change in relevant circumstances, logic precludes any inference of causation.” Young v. Westchester Cty. Dep‘t of Soc. Servs., 57 F. App‘x 492, 495 (2d Cir. 2003); see also Hazelwood v. Highland Hosp., 763 F. App‘x 60, 63 (2d Cir. 2019) (“Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began
Moreover, for substantially the same reasons as stated above with respect to the plaintiff‘s disability discrimination claims, the plaintiff has failed to show that the defendants’
However, changing the plaintiff‘s role from PRA to FA occurred immediately after the plaintiff returned to work such that the temporal proximity between the adverse action and protected activity creates an inference of a causal connection. Although the defendant states that the reason the plaintiff was placed in an FA position was because there were no other positions available, the plaintiff has raised an issue of material fact as to whether there were three other PRA positions open at the time. Accordingly, the defendants’ motion for summary judgment is denied as to the plaintiff‘s retaliation claim against HSBC under the ADA and NYSHRL, solely with respect to the change in the plaintiff‘s position from PRA to FA. The motion to dismiss the other claim of retaliation against HSBC is granted.
b. Retaliation Claims Under the NYCHRL
“[T]he retaliation inquiry under the [NYCHRL] is ‘broader’ than its federal counterpart.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (citing Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 34 (App. Div. 2009)). “[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that [he] took an action opposing [his] employer‘s discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik, 715 F.3d at 112 (internal citation omitted).
Applying a morе lenient standard, the plaintiff‘s retaliation claim under the NYCHRL for the adverse employment actions of his client portfolio size, Written Warnings, refusal to increase compensation, and termination, also fails because it suffers from the same defects as his retaliation claim under the ADA and the NYSHRL. Because the plaintiff‘s performance issues were present before his protected activities began and because the defendants disciplined the plaintiff progressively, the plaintiff has not satisfied his burden under the NYCHRL to demonstrate that retaliation was a motivating factor in these adverse employment actions.
However, because there is a disputed material fact under the stricter standard applicable under the ADA and the NYSHRL, the plaintiff has also established a genuine issue of material fact on his retaliation claim related to the adverse action of changing the plaintiff‘s role from PRA to FA. Therefore, the defendants’ motion for summary judgment dismissing the plaintiff‘s retaliation claims under the NYCHRL is denied solely
Accordingly, the defendants’ motion for summary judgment dismissing the plaintiff‘s retaliation claims against HSBC under the ADA, the NYSHRL, and the NYCHRL regarding the plaintiff‘s alleged demotion from PRA to FA is denied. The defendants’ motion for summary judgment dismissing all the plaintiff‘s other claims against HSBC for retaliation undеr the ADA, the NYSHRL, and the NYCHRL is granted.
4. Hostile Work Environment Claims
a. Hostile Work Environment Claims Under the ADA and the NYSHRL
A hostile work environment claim is cognizable under the ADA and the NYSHRL. See Fox, 918 F.3d at 73-74 (ADA); Viruet v. City of New York, No. 16-CV-8327, 2019 WL 1979325, at *17 (S.D.N.Y. May 3, 2019) (standard for demonstrating a hostile work environment the same under the ADA and NYSHRL). To succeed on a hostile work environment claim, the plaintiff must show that “(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment,’ and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Fox, 918 F.3d at 74 (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)). Furthermore, the workplace must be “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [the employee‘s] employment were thereby altered.” Alfano, 294 F.3d at 373. Courts look to “the totality of the circumstances to determine whether a plaintiff has met this burden, including proof of 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[d] with [the plaintiff‘s] work performance.” Fox, 918 F.3d at 74 (internal quotation marks and citation omitted); see also Berger v. New York City Police Dep‘t, 304 F. Supp. 3d 360, 373 (S.D.N.Y. 2018).
The plaintiff cannot meet the standard under the ADA and the NYSHRL. The plaintiff states that he felt threatened, harassed, and intimidated by Guglani. However, Guglani‘s behavior as the plaintiff‘s supervisor, including providing him Written Warnings and discussions about his underperformance, are not abusive or hostile. “Legitimate reprimаnds by an employer are not abuse. Nor are the disciplinary actions taken against [the plaintiff] in response to complaints . . . evidence” of hostile work environment. Fox, 918 F.3d at 75. Furthermore, the defendants allowed the plaintiff to take two leaves of absence within the plaintiff‘s first year of employment and provided the
b. Hostile Work Environment Claims Under the NYCHRL
The standard for establishing a hostile work environment is more permissive under the NYCHRL, and requires a plaintiff to demonstrate only “by a preponderance of the evidence that [he] has been treated less well than other employees because of [his disability].” Berger, 304 F. Supp. 3d at 373 (internal quotation marks omitted). The plaintiff points to no evidence supporting his claim that he was treated less well than other similarly situated employees because of his disability. For example, the plaintiff has not shown that giving employees returning from leave a smaller portfolio was anything other than standard procedure, to allow employees time to ramp up their activity.
Acсordingly, the defendants’ motion for summary judgment dismissing the plaintiff‘s hostile work environment claims against HSBC under the ADA, the NYSHRL, and the NYCHRL is granted.
The plaintiff also alleges that HSBC should be held liable under an aiding and abetting theory of liability in violation of the NYSHRL and the NYCHRL and under a theory of employer liability in violation of the NYCHRL.
The NYSHRL makes it unlawful for an employer to discriminate on the basis of disability. See
The NYCHRL also supports claims for aiding and abetting, which are “susceptible to the same standard as under the NYSHRL, as the language of the two laws is virtually identical.” Schanfield v. Sojitz Corp. of Am., 663 F. Supp. 2d 305, 344 (S.D.N.Y. 2009) (internal quotation marks and citation omitted) (collecting cases). The NYCHRL also holds employers liable for its employee‘s or agent‘s unlawful discriminatory conduct. See
Because the plaintiff has raised genuine issues of material fact as to whether HSBC and its employees discriminated and retaliated against the plaintiff for engaging in protected activity by allegedly assigning him to an FA position rather than a PRA position, the plaintiff‘s claims of aiding and
B. Claims Against Individual Defendants
The plaintiff alleges that the individual defendants should be held liable under the NYSHRL and the NYCHRL for disability discrimination, retaliation, failure to accommodate, and hostile work environment.5 The plaintiff alleges that the individual defendants are liable on a direct theory and an aiding and abetting theory.
Individual liability under the NYSHRL is limited to individuals who are owners or supervisors. See Malena, 886 F. Supp. 2d at 365-66. “A supervisor is an employer for purposes of establishing liability under the NYSHRL if that supervisor
Individual liability under the NYCHRL is applicable to all employees and is not limited to supervisors. Under the NYCHRL, it is unlawful for “an employer or an employee or agent thereof, because of the actual or perceived . . . disability . . . to discriminate against such person in compensation or in terms, conditions or privileges of employment.”
For the same reasons that HSBC was not liable for the plaintiff‘s failure to accommodate and hostile work environment claims under the NYSHRL and the NYCHRL, the individual defendants are also not liable for these claims. The plaintiff failed to establish a prima facie case of failure to аccommodate and failed to show any actions that rose to the level of a hostile work environment. See Woldeselassie, 2015 WL 456679, at *12 (no supervisory liability when the plaintiff failed to show discriminatory conduct in the first place).
However, the plaintiff has raised genuine issues of material fact as to the discrimination and retaliation claims regarding his alleged demotion from a PRA to FA. Because the plaintiff argues that only Guglani was involved in his alleged demotion, the motion for summary judgment on the plaintiff‘s NYSHRL and NYCHRL claims for direct liability and aiding and abetting for the plaintiff‘s discrimination and retaliation claim is denied solely as to defendant Guglani and solely with respect to the alleged demotion from PRA to FA.6 The motion for
IV.
The plaintiff has also filed two notices of motion to reopen discovery pursuant to
A.
The plaintiff‘s motions to reopen discovery are unfounded. Discovery for this case was originally scheduled to be completed by August 31, 2018. Dkt. No. 81. The Court extended the deadline for discovery five times at the parties’ request, until March 27, 2019, over six months after the original date. Dkt. Nos.
The information that the plaintiff now seeks is the same information that he sought in the motion that the Magistrate
The plaintiff now argues that his inexperience at drafting a motion to compel, his grief due to family issues, and the volume of information withheld by the defendants caused his late filing. But as the Magistrate Judge explained in a telephone conference held on November 6, 2018 regarding the motion, these reasons were known to the plaintiff when he provided his own filing deadline during the October 9, 2018 conference, but the plaintiff never raised them. Dkt. No. 128, 6:25-7:12. The ultimate obligation to follow deadlines, especially when that
Now, long after the close of an extended discovery period, the plaintiff attempts to relitigate a discovery issue already resolved by the Magistrate Judge over a year ago.7 There is no basis to overturn the Magistrate Judge‘s previous ruling.
Moreover, the plaintiff has failed to carry the heavy burden imposed on parties opposing summary judgment on
The plaintiff has failed to show how the facts he seeks create a genuine issue of material fact. The plaintiff also has failed to show that the discovery he seeks provides evidence that the defendants carried out adverse employment actions
Accordingly, the plaintiff‘s motions to reopen discovery are denied.
CONCLUSION
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons stated above, the defendants’ motion for summary judgment dismissing the claims against HSBC is granted as to the failure to accommodate and hostile work environment claims and is denied as to the discrimination and retaliation claims and claims of aiding and
SO ORDERED.
Dated: New York, New York
August 31, 2020
/s/ John G. Koeltl
John G. Koeltl
United States District Judge