Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion Papers: NYSCEF Doc. No. Notice of Motion, Affirmation/Affidavit in Support and Exhibits thereto: 77-89 Opposition/Cross Motion Filings: 90-92, 96, 103 Reply: 98, 100, 105, 106 Oral Arguments/Other: 1 DECISION AND ORDER Defendants, United Parcel Service, Inc. (“UPS”), Anthony Gallo, Anthony Celano, Santiago Lado, and Warren Pandiscia, (“Defendants”) move for summary judgment pursuant to CPLR §3126 dismissing Plaintiff Carlos Ruiz’s (“Plaintiff”) New York City Human Rights Law disability and age discrimination claims. Defendants allege that Plaintiff (i) has not established a prima facie case of disability discrimination, (ii) filed a social security claim contradictory to his disability accommodation allegations, (iii) did not request an accommodation, and (iv) was terminated due to a legitimate nondiscriminatory reason. Plaintiff opposes the motion. Plaintiff states that he was hired by UPS in April 2001 as a “service provider” driving trucks and delivering parcels. Plaintiff alleges that while he was employed by UPS, his performance met the objectively reasonable expectations of UPS. Plaintiff alleges that while seeking medical attention for a knee injury, Plaintiff raised pain and numbness affecting his neck and right arm that he had been experiencing for a while. Plaintiff received medical treatment investigating the pain. Plaintiff’s doctors allegedly attributed the pain to injuries incurred during his employment with UPS. Plaintiff submitted the bills related to such treatment to his insurance company. The insurance rejected the claim because of the allegation that the injury was work related and therefore, subject to workers compensation coverage. Plaintiff then reached out to his supervisor to discuss the submission of the bills to workers compensation. Plaintiff did not attribute the injury to the workplace but the doctors did. Plaintiff made such representations to the Defendants explaining his beliefs and understanding while making the requests to file workers compensation based on his doctor’s finding. Defendants interpreted Plaintiff’s reference to his belief that the pain wasn’t work related, the delay in time for the Plaintiff to submit the claim to Defendants, and his past filing of an allegedly false workers compensation claim as proof that Plaintiff’s 2015 requested workers compensation claim was fraudulent. A meeting was held where specific questions were asked of Plaintiff, to which Plaintiff responded consistent with his original responses to Mr. Santana. On February 2 and 4, 2022, Mr. Santana prepared memorandums regarding his conversations with Plaintiff. On Monday, February 2, 2015, Mr. Santana wrote, “Carlos informed me that he was experiencing numbness in his right hand.” On Wednesday, February 4, 2015, Mr. Santana wrote, Prior to the scheduled 10:00 a.m. meeting service provider Carlos Ruiz contacted me and informed me that his doctor stated he would not be able to work for the next six weeks. According to Carlos he was diagnosed with tennis elbows (both elbow). Carlos stated he needed to apply prescribed medication to affected area and would be able to perform work duties. Carlos agreed that he will report to work at 10:00 a.m. with pertinent paper work and provide an explanation on his current situation. On February 4, 2015, Plaintiff was terminated. Plaintiff argues that after speaking with his supervisor, Mr. Santana, about taking six-weeks off as directed by his physician he was terminated and points to Mr. Santana’s memorandums as proof of Defendants knowledge of Plaintiff’s disability. Plaintiff alleges that Defendants were motivated by Plaintiff’s request for an accommodation, which Plaintiff argues was a reasonable disability accommodation. Defendants argue that Plaintiff’s termination was not based on his disability accommodation request because Plaintiff did not inform Defendants of the request. Defendants argue that there is an established disability filing procedure that has been negotiated with Plaintiff’s union and that Plaintiff was familiar with that process because he had used it previously. As a result, they argue that the termination could not be based on a disability request that was never made. Alternatively, Defendants argue that based on the information presented to Mr. Santana by Plaintiff, Defendants reasonably believed that Plaintiff was going to file a workers compensation claim for an injury that he explicitly said was not work related. They argue that this belief alone was the basis for Plaintiff’s termination. Summary Judgment Standard Summary Judgment may be granted only when the moving party has clearly shown that no triable issue of fact exists. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). The burden of proof is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence demonstrating the absence of material facts. Brandy B v. Eden Cent. School District., 15 N.Y.3d 297, 302 (2010). Failure to oppose a motion for summary judgment does not automatically grant the motion, because the court must still assess whether the moving part has met the burden of proof by demonstrating that there is no genuine issue of material fact, and thus, making its entitlement to judgment as a matter of law. Winegrad, et al., v. New York University Medical Center, 64 N.Y.2d 851 (1985). The function of the court on a motion for summary judgment is issue finding rather than issue determination, and the court must evaluate whether the alleged factual issues presented are genuine or unsubstantive. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 394 (1957). A Prima facie Case of Disability Discrimination Summary judgment motions pursuant to New York City Human Rights Law, NYC Administrative Code 8-130 (hereinafter, “NYCHRL”) must be construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible. NYC Adm. Code §8-130; Albunio v. City of New York, 16 N.Y.3d 472, 477-478 (2011). Claims pursuant to NYCHRL “must be reviewed independently from and ‘more liberally’ than their federal and state counterparts.” Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 34 (1st Dept 2011) (internal citations omitted). To establish a prima facie case of disability discrimination pursuant to NYCHRL should not be an onerous task for plaintiffs. Bennett, 92 A.D.3d 29. It borrows from the ADA establishment of a prima facie case of discrimination set forth in the McDonnell Douglas v. Green, 411 U.S. 792 (1973) case, in that it is a shifting burden. The first portion of the analysis requires Plaintiff to show membership in a protected class and that an adverse employment action has been taken against him/her. In the present case, this step of determining whether Plaintiff’s prima facie burden has been met is superfluous because Defendant has already moved for summary judgment and offered evidence in admissible form of one or more nondiscriminatory motivations for its action. Bennett, 92 A.D.3d at 39-40. Here, Defendants offer admissible evidence that the termination of Plaintiff was based on (i) his failure to inform Defendants through the allegedly well documented procedures for a disability accommodation request, and (ii) the reasonable belief that Plaintiff was attempting to file a false workers compensation claim. Accordingly, the first prong under McDonnell Douglas is satisfied. Id. The burden now shifts to the Defendants who now bear “the burden of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable under any of the evidentiary routes; under the McDonnell Douglas test, or as one of a number of mixed motives, by direct or circumstantial evidence.” Id. at 41. Defendants are unable to meet this burden. Defendants argue that if the employer were unaware that a plaintiff had a disability at the time of the termination decision, summary judgment should be granted. See Woolley v. Broadview Networks, Inc., 2003 WL 554754, at *8 (S.D.N.Y. Feb 26, 2003). Defendants further state that knowledge of an injury alone is not sufficient if the proper procedure for filing a disability claim is known to the plaintiff, citing a Southern District of New York decision. Defendants assert that Plaintiff has not provided evidence that Defendants were made aware of a disability at the time of the termination decision. Defendants allege that during a meeting on February 2, 2015, with Luis Santana, Plaintiff’s immediate supervisor, Plaintiff denied his injury was work-related, and stated the reason he was filing workers compensation was to cover the cost of the medical bills not covered by his insurance. Defendants argue that this statement was viewed as an admission that Plaintiff planned to file a false workers compensation claim. Further, the Defendants claim that Plaintiff knew the procedures for formally applying for disability. However, when Plaintiff explicitly discussed his doctor’s note and his need for time off, Defendants did not refer him to such process and instead addressed the oral request directly by terminating Plaintiff. Therefore, the injury was clearly known to management in charge of making the termination decision and a reasonable jury could infer that the workers compensation claim was a pretext and that instead the injury and six-week accommodation was the main motivation for the termination. Defendants’ claims regarding their lack of knowledge are not persuasive. Disability under NYCHRL Defendants argue that Plaintiff has not shown that he is disabled as defined by the ADA. While Plaintiff counterargues, the ADA does not govern this case but rather the NYCHRL’s definition of disability does. NYCHRL defines “disability” as any physical, medical, mental or psychological impairment, or a history or record of such impairment. NYC Administrative Code 8-102. NYCHRL does not limit the definition of disability to a time limited period. The NYCHRL definition of disability does not include reasonable accommodation or the ability to perform a job in a reasonable manner. The City HRL requires that an employer “make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job…provided that the disability is known or should have been known by the [employer].” Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 885 (2013) (internal citations omitted). The Court of Appeals has held that unlike other discrimination statutes, it is the employer’s burden to prove undue hardship under the NYCHRL. Id. citing Phillips v. City of New York, 66 AD3d 170, 183 (1st Dept 2009). The NYCHRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, “satisfy the essential requisites of the job,” “pleading obligation” to prove that the employee “could not, with reasonable accommodation, satisfy the essential requisites of the job.” Id. citing Phillips, 66 AD3d at 183. Because Defendants base their argument on the definition of disability set forth in the ADA and an interpretation of disability under NYCHRL is more expansive, the Court finds a reasonable jury could find the Plaintiff’s allegations within the NYCHRL’s definition of disability. Social Security Disability Insurance Claim Defendants argue that Plaintiff sought benefits by filing a Social Security claim, asserting he was completely unable to work, but also filing a disability discrimination claim indicating he can work with a certain accommodation. Defendants rely on Kendall v. Fisse, 2004 U.S. Dist. LEXIS 28505 (E.D.N.Y. 2004), where the court granted summary judgment to the employer on a disability claim where the plaintiff had filed for SSDI, indicating in the application he could not work, but claimed within his lawsuit that he could work with an accommodation. The inconsistency between the application and position taken by the plaintiff in Kendall, without an explanation, meant there was no basis for a reasonable juror to conclude the plaintiff could continue to perform the essential functions of the job. Plaintiff alleges Defendants reliance upon Kendall is incorrect as the plaintiff had applied for and received Social Security Disability benefits in that case. Here, Plaintiff has merely applied for SSDI, but has not obtained them. In addition, Plaintiff points out that the Kendall decision relied upon Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) which relied upon judicial estoppel. However, Plaintiff points out that there is no argument being made that he is subject to judicial estoppel because there has been no adjudication of the SSDI claim and therefore no preclusive effect. Moreover, the Supreme Court of the United States found the plaintiff in Cleveland able to receive SSDI and maintain an ADA action where she offered an adequate explanation of conflicting statements. Id. at 807. In addition, Plaintiff’s case is not governed by federal law i.e., the ADA, and statute and court precedent dictate that claims under NYCHRL be interpreted broadly. The Court further does not find the statements made by Plaintiff in each of the applications contradictory because whether Plaintiff’s injury are permanent or temporary is not conclusive for a disability to be eligible for protection sunder NYCHRL. The Court finds Defendants’ reliance on Kendall to be insufficient and thus finds the Motion for Summary Judgment denied. Accommodation Request Defendants allege that Plaintiff did not properly submit an accommodation request despite being familiar with the process from prior experience. Furthering that Plaintiff must demonstrate that he requests an accommodation and can work with such accommodation. In addition, Defendants allege that under the ADA regulations it is the plaintiff’s responsibility to inform the employer of his or her accommodation needed. See 29 C.F.R. App. Pt. 1630.9. Under the NYCHRL, Defendants argue that the employer should make a reasonable accommodation to the plaintiff, under the provision that the disability was known or should have been made known by the employer. Plaintiff let Mr. Santana, his immediate supervisor, know of a six-week time off required by his physician the morning a meeting was held to determine Plaintiff’s termination. However, Defendants focus on Plaintiff’s indication on three separate occasions that he wanted to file a workers’ compensation claim. Plaintiff argues that although he did not formally submit an accommodation request, his employer was still made aware of the disability claim and accommodation request prior to the decision to terminate having been made. Plaintiff states that Defendants’ argument does not stand because his employer did not engage in an interactive process. The New York State Human Rights Law (see Executive Law §296 [State HRL]) and the New York City Human Rights Law (see Administrative Code of City of NY §8-107 [City HRL]) generally preclude summary judgment in favor of an employer dismissing an employee’s disability discrimination claim where the employer has failed to demonstrate that it responded to a disabled employee’s request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation. Jacobsen v. New York City Health and Hosps. Corp., 22 N.Y.3d 824, 825 (2014). Here, there was no engagement in such process. The Court finds a triable issue of fact of whether Plaintiff was required to submit a formal accommodation request and whether the employer knew or should have known about the disability and accommodation request, thus, the Motion for Summary Judgment on this issue is denied. Termination Defendants allege they have a legitimate nondiscriminatory reason for terminating Plaintiff. Defendants argue UPS honestly believed Plaintiff was attempting to file a false workers’ compensation claim in February 2015 by relying on Mr. Santana’s memorandums. The memorandums stated Plaintiff informed Mr. Santana that Plaintiff could not afford his medical bills and thus, sought to file a claim with UPS. (Defendants’ Ex. 9.) In addition, Defendants state that this is not the first time Plaintiff tried filing a false claim. In 2010, Plaintiff filed a workers compensation claim that was allegedly not work-related. Thus, Defendants made the decision to terminate Plaintiff based upon the belief that Plaintiff wanted to file a dishonest claim. Plaintiff argues that Defendants only rely upon Mr. Santana’s memorandums. Without taking into consideration that Plaintiff had visited a physician and received an expert opinion upon his injury being a work-related injury requiring him to take six weeks off from work. Plaintiff contest Defendants’ use of “honest belief” stating there was no bona fide intention by Defendants in regard to Plaintiff’s request for an accommodation. Defendants’ justification for Plaintiff’s termination is not sufficient as a matter of law. In the first instance, a jury could find that since there is a procedure and adjudication process associated with workers compensation claims that Defendants’ behavior in firing Plaintiff was unnecessary and unreasonable, notwithstanding the honesty policy. It was not necessary for the Defendants to subvert the prescribed workers compensation system for a direct termination, especially when doing so also presented a possible retaliation claim. N.Y. Workers’ Comp. Law §120. Accordingly, a reasonable jury could find that the Defendants’ proffered reason of fraud is a pretext for discriminatory intent or one of several motivations for the termination. The Court has considered all the parties various related arguments and finds them unavailing. Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ motion for summary judgment is denied; and it is further ORDERED AND ADJUDGED that a copy of this Decision and Order with Notice of Entry be served by the prevailing party upon all parties to the present action within thirty (30) days of the date of entry. This constitutes the decision and order of the Court. Dated: September 1, 2022
