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finding that "the same legal analysis applies when assessing disability discrimination claims under either the NYCAC or the [NYSHR]"
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02 CV 6588 (JG).
November 3, 2004
HARRY WEINBERG, Law Offices of Harry Weinberg, New York, New York, Attorney for Plaintiff.
L. LYNNETTE SARNO, Seyfarth Shaw LLP, New York, New York, Attorney for Defendants.
MEMORANDUM AND ORDER
In this diversity case, plaintiff Gail Branson ("Branson") alleges that defendants Ethan Allen and Gina Kahn ("Kahn") subjected her to a hostile work environment, failed to provide a remedy when she complained, and terminated her because they regarded her as disabled, all in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. ("NYHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-107 and 8-502 et seq. ("NYCAC"). The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. I heard oral argument on October 8, 2004. For the following reasons, the defendants' motion is denied.
FACTS
The following facts are drawn from the parties' Rule 56.1 Statements and the affidavits thereto. To the extent that the parties' statements differ, the plaintiff's version is included here.
Branson was hired to work in Ethan Allen's Staten Island retail store in August of 1998 as a design consultant. Her duties and responsibilities included floor selling, design work, tagging floor merchandise, making house calls, and selling accessories. There were minimum requirements for sales, and Branson was paid a commission for her sales. At any given time, the store had one part-time and eight full-time design consultants. (Branson Depo. 87.) During the time she was employed by Ethan Allen, Branson weighed approximately 250 pounds and was five feet and one and one-half inches tall.
On January 27, 2000, Branson received her first written warning. It was from Mike Bacon, who was the District Manager at that time. The warning stated that Branson was "consistently failing to perform [her] assigned duties, especially in the area of floor tagging," and that "staff members [were] frequently fielding phone calls from [her] customers" because of her failure to return their calls. (Sarno Decl. Ex. F.) It also warns that "[c]ontinuing to perform in this manner will jeopardize your employment status." Id.
In February of 2000, Ethan Allen hired Gina Kahn as store manager of the Staten Island store. Kahn became Branson's immediate supervisor. Kahn made a number of written and verbal complaints about Branson. On August 30, 2001, she gave Branson a final written warning based on a customer's order. It stated "If you again fail to properly follow up, receive a credit or cancellation because of your lack of follow up and responsibility and attention to detail or ignore my directives, you will be terminated." ( Id. at Ex. N.)
Branson was terminated by Kahn on January 26, 2002.
Branson alleges that many of the designers were unhappy with Kahn's management and the changes she made in the operation of the business. As a supervisor, Kahn was "incompetent, rude, never called customers back, sometimes she would scream." (Branson Depo. 76, 80.) "Almost everyone" had "verbal outbursts" with Kahn. ( Id. at 84-85.) However, Branson claims that she "was being singled out" and treated worse than others. ( Id. at 79-80.)
Branson alleges that Kahn mistreated her, and eventually terminated her, because of her weight. More than once, Kahn told her not to wear sweaters because they "showed [her] bulges." ( Id. at 94.) On one occasion, Kahn told her to "cover up more" and not to dress the way she did. ( Id. at 100.) She also called Branson "fat," and said she "could not understand how anybody would let themselves get to that point. And how in the fashion business . . . that was unacceptable." (Branson Depo. 102.). Kahn also communicated that Branson "did not portray the image that [Kahn] wanted for Ethan Allen." Kahn said that Branson was "an insignificant human being unable[,] to work for anybody doing anything." ( Id. at 21, 103)
Kahn left notes on Branson's desk that stated, "This desk smells," and took issue with the appearance of Branson's desk on many occasions. ( Id. at 108, 113, 139.) Kahn called Branson "a pig," and on numerous occasions screamed in front of other co-workers that her desk was a mess. ( Id. at 139.) After one such occasion, on December 5, 2000, Kahn suspended Branson, telling her to "get the hell out of the store." ( Id. at 140.)
DISCUSSION
A. Standard for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.
In reviewing the evidence on a motion for summary judgment, I must "[resolve] all factual ambiguities and [credit] all inferences, including those relating to credibility," in favor of the party opposing the motion. Petrosino v. Bell Altantic, 385 F.3d 210, 219 (2d Cir. 2004); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (quoting Fed.R.Civ.P. 56(e)).
In a discrimination case such as this, additional considerations should be taken into account. "A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). Affidavits, depositions, and other evidence "must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination," as direct evidence of intentional discrimination is rarely available. Id.
B. Discrimination Under New York State Human Rights Law, N.Y. Exec. Law § 296 et seq.
Section 296(1)(a) of the NYHRL states, in relevant part:
It shall be an unlawful discriminatory practice (a) For an employer . . . because of . . . disability . . . to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
In an analysis of Branson's discrimination claims under the NYHRL, New York courts would apply the burden-shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See N. Shore Univ. Hosp. v. Rosa, 86 N.Y.2d 413, 419-20 (1995); Reeves v. Johnson Controls World Svcs., Inc., 140 F.3d 144, 156 n. 9 (2d Cir. 1998) (applying the McDonnell Douglas framework to a disability claim under NYHRL); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996) (citing Tomka v. Seiler, 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995)). To succeed, "a plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp., 411 U.S. at 802.
To meet this burden a plaintiff must show; (i) membership in a protected class; (ii) qualifications for the position; (iii) an adverse employment action; and (iv) circumstances surrounding that action giving rise to an inference of discrimination. Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002) (citations omitted). Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer, who must articulate a nondiscriminatory basis for the adverse action. If the employer meets this burden, the plaintiff, in order to succeed, must show by a preponderance of the evidence that the employer's explanations are a pretext for discrimination. Burdine, 450 U.S. at 252-53.
Thus, summary judgment for the defendant is appropriate when the plaintiff either (1) fails to establish a prima facie case, or (2) fails to present evidence contradicting a well-presented legitimate reason, offered by the defendant, for the adverse employment action.
1. Prima Facie Case
Branson is claiming discrimination based on disability. In the NYHRL, disability is defined as
(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or
(b) a record of such an impairment or
(c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.
N.Y. Exec. Law § 292(21) (emphasis added). Branson's claim arises under § 292(21)(c).
The definition of disability in the NYHRL is broader than the definition of disability in the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12102(2)(a). See State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 218-19 (1985); see also Shannon v. New York City Transit Auth., 332 F.3d 95, 104 n. 2 (2d Cir. 2003) ("We recognize that New York's highest court has interpreted the meaning of `disability' under the NYSHRL to be broader than the meaning of `disabled' under the ADA."). In other respects, the NYHRL is co-extensive with the ADA. See, e.g., Shannon, 332 F.3d at 103 (holding that "§ 292(21) of the NYHRL is parallel to the `otherwise qualified' requirement of the ADA). Both provide discrimination actions for persons who are "regarded as" disabled. See 42 U.S.C. § 12102(2)(c) ("being regarded as having such an impairment"); N.Y. Exec. Law § 292(21)(c) ("a condition regarded by others as such an impairment"). Accordingly, the interpretation of "regarded as" claims under the ADA informs the analysis in the present case.
The Supreme Court has interpreted "regarded as" under the ADA to apply to two possible situations: (1) an employer mistakenly believes that a person is disabled, as defined by the statute, or (2) an employer mistakenly believes that some actual, non-disabling impairment is disabling, within the meaning of the statute. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). The cause of action is contingent on the plaintiff showing that the employer "regarded the individual as disabled within the meaning" of the statute, i.e., under the ADA plaintiffs must show that defendants regarded plaintiffs "as having an impairment that substantially limited a major life activity." Colwell v. Suffolk County Police Dep't., 158 F.3d 635, 646 (2d Cir. 1998) (emphasis in original).
New York courts analyze "regarded as" claims similarly. Ashker v. Int'l Bus. Machines, Corp., 563 N.Y.S.2d 572, 574 (2d Dep't 1990) ("The statutory language is sufficiently broad, and the legislative history sufficiently supportive of an interpretation . . . that nondisabled individuals like plaintiff, whom an employer wrongfully perceives as impaired, come within its reach.") (citations omitted). However, because of the broader definition of disabled under the NYHRL, how the employer must "regard" the plaintiff is different. In order for her claims to survive summary judgment, Branson need only show that a reasonable jury could find that Kahn (1) regarded her as having an impairment that either prevented the exercise of a normal bodily function or is demonstrable by medically accepted techniques or (2) mistakenly believed that Branson's weight was a physical impairment that either prevented the exercise of a normal bodily function or was demonstrable by medically accepted techniques.
Branson presents evidence that would allow a reasonable jury to conclude that Kahn regarded Branson's weight as such an impairment, resulting in a hostile work environment and Branson's termination. A jury could reasonably conclude that Kahn's comments, including those regarding Branson's odor, her inability to work for anyone doing anything, and her inability to work in the fashion business in part because of the impact of her weight on her appearance, were premised on Kahn's belief that Branson had a medical condition which caused her to be overweight. In the alternative, a reasonable jury could conclude that Kahn mistakenly believed that Branson's weight itself constituted a disabling condition, such as morbid obesity, demonstrable by medically accepted diagnostic techniques.
The New York Court of Appeals has twice addressed the treatment of weight and obesity as a disability under the NYHRL. In New York State Division of Human Rights v. Xerox Corp., it held that a plaintiff, who had "active gross obesity," being five feet six inches tall and weighing 249 pounds, was disabled under the statute because her condition "was clinically diagnosed and found to render her be medically unsuitable," and because the statute is not limited to "hopeless conditions." Xerox Corp., 65 N.Y.2d at 107, 109-10. The court further held that the statute does not permit employers to "refuse to hire persons who are able to do the job simply because they have the possibly treatable condition of excessive weight." Id. at 110. Although in that case the adverse employment decision was based on a clinical diagnosis, a cause of action based on disability discrimination remains viable even if the employer was not aware of any clinical diagnosis, as long as the condition existed. Hazeldine v. Beverage Media, Ltd., 1997 WL 469597, *10 (S.D.N.Y Jan. 28, 1997).
In a subsequent case, the Court of Appeals limited its holding in Xerox, holding that "weight, in and of itself, does not constitute a disability for discrimination qualification purposes." Delta Air Lines v. New York State Div. of Human Rights, 91 N.Y.2d 65, 73 (1997). In Delta Air Lines, plaintiffs challenged Delta's weight and appearance requirements for flight attendants on a number of grounds, including disability discrimination under the NYHRL. The court found that the plaintiffs "did not proffer evidence or make a record establishing that they are medically incapable of meeting Delta's weight requirements due to some cognizable medical condition," which the court described to have been "crucial in Xerox." Id. Xerox and Delta Air Lines did not address obesity in the context of a "regarded as" claim. However, they inform the definition of disability with respect to obesity under NYHRL, which is a key element of a "regarded as" claim. In considering the allegations in the light most favorable to Branson, I believe Branson has established a genuine issue of material fact with respect to whether Kahn regarded her as disabled under the statute.
Branson must also show that she was qualified for the position from which she was terminated. McDonnell Douglas requires only a minimal showing of qualification for the employment in question to establish a prima facie claim. de la Cruz v. New York City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20-21 (2d Cir. 1996). Plaintiff "need not demonstrate that [her] performance was flawless or superior." Id. at 20. "[T]he qualification necessary to shift the burden to defendant . . . is minimal; plaintiff must show only that [she] `possesses the basic skills necessary for performance of [the] job.'" Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001), quoting Owens v. New York City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991). Moreover, the fact that the employer has already hired the employee, Slattery, 248 F.3d at 92, and retained the employee for a significant period of time, Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001), support the inference that the employee was minimally qualified for the job.
In disputing Branson's qualifications, defendants point to allegations that Branson was not responsive to clients, was insubordinate to Kahn, and failed to assist her co-workers. Misconduct, however, is distinct from the issue of job qualification. "An individual may well have the ability to perform job duties, even if her conduct on the job is inappropriate or offensive." Owens, 934 F.2d at 409. Branson was employed by Ethan Allen from August of 1998 to January of 2001. She has, at the very least, created a genuine issue as to whether she was minimally qualified to perform the duties of a design consultant.
Branson alleges that the circumstances surrounding her termination give rise to an "inference of discrimination." Collins, 305 F.3d at 118. Although defendants argue that Kahn's alleged statements and conduct cannot support such an inference because both were premised on Branson's improper image and appearance, a reasonable jury could conclude that Kahn regarded Branson's weight to be a disability as defined by the NYHRL, and that Kahn's conduct and statements were a product of this discriminatory belief. Because I conclude that a reasonable fact finder could conclude that Kahn's alleged behavior was motivated by her regarding Branson as disabled, these allegations give rise to an inference of discrimination sufficient to establish the prima facie case.
2. Ethan Allen and Kahn's Legitimate Non-Discriminatory Reasons for Terminating Branson
As stated above, once Branson establishes a prima facie case of discrimination, the burden shifts to Ethan Allen and Kahn to establish a legitimate, non-discriminatory reason for their termination of Branson. Burdine, 450 U.S. at 252-53; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). "This burden is one of production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (citation and quotations omitted); see also Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (employer's burden of offering a legitimate reason is satisfied if "`taken as true, [it] would permit the conclusion that there was a nondiscriminatory reason for the adverse action.'") (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis omitted)).
Here, defendants offer evidence of a number of written and oral reprimands and warnings regarding Branson's job performance. Kahn also testified to Branson's insubordination and lack of cooperation with herself and other employees. Taken as true, they provide sufficient evidence for defendants to meet their burden of establishing a legitimate, non-discriminatory reason for Branson's termination.
3. Evidence of Pretext in the Reasons Offered for Termination
Upon being presented with evidence of a legitimate, non-discriminatory reason for the adverse employment action taken by the defendant, "the presumption of discrimination created by the prima facie case drops out of the analysis, and the defendant `will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.'" Mario v. P C Foods Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002) (quoting James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000)). "The plaintiff `must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination.'" Id. (quoting Reeves, 530 U.S. at 143); see also Weinstock, 224 F.3d at 42 ("The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].") (quotations and citations omitted, brackets in original).
To determine whether a plaintiff has met this burden, courts utilize a "case-by-case approach . . . examining the entire record" for evidence that would allow a reasonable trier of fact to conclude that defendant intentionally discriminated against plaintiff. Schnabel, 232 F.3d at 90 (citation and quotation omitted). In so doing, courts should assesses the "`strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case.'" James, 233 F.3d at 156 (brackets in original) (quoting Reeves, 530 U.S. at 148-49). "[A]n employer would be entitled to judgment as a matter of law if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves, 530 U.S. at 148.
In the present case, there is genuine contention with respect to the facts surrounding Kahn's negative evaluations of Branson and her ultimate termination. Not only does Branson deny the bases for a number of the complaints and warnings, she argues that other similarly situated employees were not treated in the same manner. (See Ryan Depo. 212-13, Kahn Depo. 131-32.) On the evidence presented, Branson provides sufficient evidence for a reasonable jury to conclude that the reasons offered for her termination were pretextual, and that Kahn's regarding her as disabled within the meaning of New York law was the real reason for the termination.
B. Discrimination under New York City Human Rights Law, N.Y. City Admin. Code §§ 8-107 and 8-502 et seq.
Branson also claims that defendants unlawfully discriminated against her based on her perceived disability under the NYCAC.
The NYCAC is substantively similar to the NYHRL. See Burton v. Metro. Transp. Auth., 244 F. Supp.2d 252, 258 (S.D.N.Y. 2003). The statute provides, in relevant part, as follows:
It shall be an unlawful discriminatory practice:
(a) For an employer or an employee or agent thereof, because of the actual or perceived . . . disability . . . of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment. N.Y. City Admin. Code § 8-107(1). The NYCAC defines disability as "any physical, medical, mental or psychological impairment." N.Y. City Admin. Code § 8-102(16). While the NYCAC does not have a claim for being "regarded as" disabled, it does support a cause of action for "perceived" disability. Both Branson and defendants agree that the same legal analysis applies when assessing disability discrimination claims under either the NYCAC or the NYHRL.
For the purposes of this motion, I find that the causes of action are parallel. Therefore, the conclusions above apply equally to Branson's claims under the NYCAC.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is denied.
So Ordered.