Lyman v. City of New York, Department of Probation

Full title: SARA LYMAN, Plaintiff, -against- THE CITY OF NEW YORK, DEPARTMENT OF…

Court: United States District Court, S.D. New York

Date published: Sep 19, 2003

01 Civ. 3789 (RWS) (S.D.N.Y. Sep. 19, 2003)

Opinion

01 Civ. 3789 (RWS)

September 19, 2003

JEFFREY S. KARP, P.C., JEFFREY S. KARP, ESQ. New York, for Plaintiff

HONORABLE MICHAEL A. CARDOZO, BRUCE ROSENBAUM, ESQ., BARBARA G. LIFTON, ESQ., New York, for Defendants

OPINION

ROBERT SWEET, Senior District JudgePage 2

Defendants the City of New York Department of Probation ("OOP") and Gloria Salas-Agnoli ("Salas-Agnoli") have moved pursuant to Fed.R.Civ.P. 56 for summary judgment to dismiss the complaint of plaintiff Sara Lyman ("Lyman"), which alleges violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et sea., the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et sea., the New York State Human Rights Law, New York Executive Law §§ 290, et seq., and the New York City Human Rights Law, NYC Administrative Code §§ 8-101, et seq.

For the reasons set forth below, the motion is granted in part and denied in part.

Prior Proceedings

Plaintiff filed the complaint in this action on May 3, 2001. The defendants filed this motion on April 16, 2003. After submission of briefs, the motion was deemed fully submitted on June 25, 2003.

Facts

The following facts are taken from the parties' Rule 56.1 statements and, as required, are construed in the light most favorable to the non-movant, as applicable. They do not constitute findings of fact by the Court.

Lyman was employed by DOP on March 17, 1997 in the civil service title of Staff Analyst II. She was assigned to work as a manager in the DOP Facilities Department. As a Facilities Manager, Lyman managed maintenance and construction work at DOP building sites, typed reports, worked on-site with DOP Management Information Services ("MIS") on installation of computer systems and voice and data lines, wrote programs on her computer, worked with vendors, and performed other site-based telecommunications work.

In 1997, Lyman was diagnosed with a connective tissue disease which caused pain in her muscles and soft tissue area.

On June 23, 1999, Lyman was selected for the civil service title of probationary Computer Associate (Software) Level I. However, Lyman remained in the job of facilities manager in the Facilities Department until January 2000. When Lyman actually started working in MIS, she was assigned to work in the User Support Unit, supervised by Salas-Agnoli. Lyman was assigned to work with service vendors contracted to solve technical computer-related problems reported by DOP users, and to assure that the responses were timely and effective.

On February 16, 2000, Lyman submitted a note from her doctor advising that she be assigned unspecified "modified light duty" at work because she suffers from cervical radiculopathy, which is a compression of one or more of the nerve roots of the cervical area of the spine which may be caused by a ruptured disc, arthritis or other factors which place pressure on the nerve roots. Lyman requested the note because she was doing a lot of typing in connection with her work with vendors. Lyman also claims that as early as February 2000 she indicated that she should have a recording device in order to avoid the stress to her joints caused by note taking.

On March 10, 2000, the DOP Chief of Personnel sought clarification from Lyman of the doctor's note and whether or not plaintiff was seeking an accommodation. The Chief of Personnel advised plaintiff of the DOP Equal Employment Opportunity ("EEO") procedures regarding reasonable accommodation.

On March 13, 2000, Lyman submitted a written request for accommodation to Salas-Agnoli and to the EEO Officer at DOP, Zitamarina Rodriguez. The accommodations requested were an ergonomic chair with back support and arm rests, and recording equipment for taking notes at meetings. In support of her request, Lyman submitted a handwritten note, dated March 10, 2000, from her physician state that the accommodations requested were recommended because she "suffers from neck and low back pain due to nerve compression." Lifton Decl. Exh. E.

On March 21, 2000, Salas-Agnoli acknowledged receipt of Lyman's request and advised her that her requests would be processed. The acknowledgment was forwarded to the EEO office. Salas-Agnoli suggested that in the meantime, Lyman should look within the MIS area to see if there was a suitable or better chair immediately available, and also asked her to look in catalogues and provide her with the model chair she required. MIS initiated the procurement of the ergonomic chair and the recording device because there were none available at the central office.

After Lyman began working in User Support, other employees working with her began to complain that there had been unnecessary questioning and documentation demanded by Lyman, which was counterproductive. Defendants have also received complaints from vendors regarding Lyman's handling of the vendor's user service requests and her ticketing procedures. In March 2000, Lyman's supervisor modified Lyman's duties so that she could handle all vendor issues from beginning to end, which might reduce unnecessary interaction of Lyman with other employees.

Defendants claim that on or after May 3, 2000, Lyman falsely accused Salas-Agnoli of raising her voice to her at a meeting that day. In a letter to Lyman, Salas-Agnoli cited the accusation as an example both of Lyman's continuous false accusations circulated around DOP and of her resistance to supervision. Lyman contests the account, and claims that she was forced to stand throughout the meeting. According to Salas-Agnoli's testimony, Lyman was asked if she wanted a chair brought in and Lyman declined. See Karp Decl. Exh. E at 63.

On May 12, 2000, Lyman was assigned a site survey task to ensure computer hardware security in DOP offices. The task entailed checking whether computer equipment was properly anchored to the floor. Although defendants characterize the task as "important," see Def. Rule 56.1 Statement at ¶ 24, Lyman notes that the same site survey task had been completed months earlier by another employee. According to Lyman, the task entailed traveling throughout the five boroughs and "entailed physical exertion . . . resulting in pain and mental anguish." Pl. Rule 56.1 Statement at ¶ 20.

On May 30, 2000, Lyman submitted a note from her physician advising that due to Lyman's cervical radiculopathy, she was to refrain from any "bending, pulling, pushing and lifting on her job." The doctor again recommended "modified light duty." Lifton Decl. Exh. 0. Salas-Agnoli and the Assistant Commissioner for MIS met with Lyman as a result of receiving the note, and advised her that her hardware security assignment was to observe and assess the anchoring statuses for each work station, and advising her to perform her duties in a reasonable, non-physically intensive mode.

According to defendants, on or shortly after June 13, 2000, Rodriguez inquired of Lyman whether she had received her chair or recording device, see Karp Decl. Exh. B at 133-34 (Lyman Dep.), and then arranged for Lyman to be given an ergonomic chair belonging to another employee as soon as she obtained access to Lyman's office. She could not access the office because Lyman had been assigned to field duty from May to August of 2000. Lyman contests this account, and contends that defendants made no effort to accommodate her from when the first request for accommodation was received until after she filed her charge of discrimination on June 13. Lyman also notes that Rodriguez did not know if an ergonomic chair had been ordered for Lyman.

A recording device was ordered and received in June, but it was not forwarded to plaintiff because she was not required to take notes or minutes at any staff meetings other than one held on April 19, 2000.

Lyman filed a Charge of Discrimination, Charge No. 160-AO-2120, with the Equal Employment Opportunity Commission ("EEOC") on June 13, 2000. The defendants contend that Salas-Agnoli did not know that Lyman had filed the Charge, while defendants cite testimony of Rodriguez indicating that the she had discussed the charge with Salas-Agnoli. See Karp Decl. Exh. D at 53-55 (Rodriguez Dep.). It is not clear from Rodriguez's testimony when Salas-Agnoli learned that the Charge had been filed.

DOP received a letter, dated July 31, 2000, indicating that the Charge had been withdrawn due to the provision of reasonable accommodation. See Lifton Decl. Exh. U. Defendants claim that Lyman had told the EEOC in early July that she had received the ergonomic chair and that "everything has been quiet in the office." Lifton Decl. Exh. B at 140. Lyman contends that she never withdrew the first Charge, and that the withdrawal was a mistake by the EEOC. Lyman also contends that she expressed her concern to the EEOC that she would be retaliated against once the EEOC withdrew the charge.

On August 24, 2000, Salas-Agnoli wrote to the DOP Chief of Personnel, recommending that Lyman be terminated or demoted, noting, inter alia, that she "does not adhere to managerial/supervisory directives and resists supervision," "is insubordinate both in action and tone," and that her "work products quality and timelines are poor." Lifton Decl. Exh. P.

Lyman contends that following the completion of her computer hardware security inventory assignment in August 2000, she was assigned a job of moving heavy boxes which required lifting and bending.

On September 29, 2000, Salas-Agnoli again advised Lyman about inappropriate requests for schedule changes and to remind Lyman that she has been assigned important tasks at the User Support Unit which required technical expertise.

On October 2, 2000, Lyman's job performance was evaluated for her probationary period as unsatisfactory. The employee performance evaluation assigned unsatisfactory task ratings to several tasks, and noted that Lyman did not follow appropriate protocols and did not work well with colleagues or her supervisor.

Lyman contests each of the accounts given of her job performance and contends that the basis for the evaluation was retaliatory. She also indicates that she made frequent requests of "high level management within the Department" for transfers to other units where she could escape Salas-Agnoli, but noted that each request was denied.

On November 20, 2000, Lyman's probationary services in the title of Computer Associate (Software) were terminated, and she was returned to her permanent Staff Analyst Level II position. Lyman was assigned to the Office of the Deputy Commission for Administration and Planning as a Staff Analyst. Following the filing of a grievance by Lyman's labor union on her behalf, a Labor Arbitrator concluded that the defendant DOP had violated the applicable collective bargaining agreement by terminating Lyman from the Computer Associate position after her probationary period was concluded.

Lyman filed a second Charge of Discrimination with the EEOC on November 27, 2000. Lyman never received a right to sue notice on her first Charge, see id. at 141, but the notice on the second charge was received on April 3, 2001.

Standard of Review

Rule 56(e) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits . . . show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986);Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002).

Lyman Is An Individual With A Disability As Defined by the ADA and the Rehabilitation Act

The ADA defines a disability with respect to an individual as:

(a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(b) a record of such impairment; or

(c) being regarded as having such an impairment.

42 U.S.C § 12102(2). The inquiry into whether a given disability limits "the major life activities of such individual" is an individualized one. "The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment a person has, but rather on the effect of that impairment on the life of the individual." Conroy v. N.Y.S. Dep't of Correctional Services, 333 F.3d 88, 96 (2d Cir. 2003) (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(j)).

As provided by EEOC regulations, "major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 29 C.F.R. § 1630.2 (i). When the major life activity under consideration is working, the statutory phrase "substantially limits" requires, at a minimum, that plaintiff alleges that she is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes. In the context of working,

The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523 (1999).

Defendants argue that even if Lyman is physically impaired, she cannot demonstrate that she was disabled under the ADA. Defendants note that while Lyman claims she was diagnosed with lupus in 1997, she worked at DOP for three years without indicating that she had a medical condition that required accommodation. Further, Lyman never notified defendants that she had lupus, but only that she suffered from cervical radiculopathy, and asked to be excused from "bending, pulling, pushing and lifting on her job." Lifton Decl. Exh. 0.

Defendants also argue that Lyman has not contended that she is substantially limited in her ability to work generally, but only that "her medical conditions affected her ability to perform specific tasks in a specific job in the specific unit which she claims to have been assigned, such as repetitive typing and making many telephone calls." Def. Mem. at 7. According to defendants, Lyman admits that she was qualified and capable of performing the duties of a Computer Analyst (Software), but claims she was not assigned to those duties in conformance with her job title. See Complaint, ¶ 27, subparas. E and F (alleging that Salas-Agnoli refused to assign job duties to Lyman "which were within her title of Computer Associate (Software)"). Defendants therefore argue that because Lyman is capable of performing in a broad class or range of jobs, she is not substantially limited in the field of working.

Lyman replies that her disability limits her major life activities of performing manual tasks and walking. Lyman is not claiming that her physical impairments substantially limit the major life activity of working, and points out that with the accommodation she requested she would be capable of performing the work in her job description of Computer Associate (Software).

The evidence put forward by Lyman of substantial limitation is scant, and effectively consists of her own affidavit stating that it is "extremely difficult" for her to write, and that she is incapable of performing household chores, playing any sports activities with her nine-year old son, and of gardening or utilizing any manual tools. See Karp Decl. Exh. A, 55 7-11. Lyman also indicates that her impairments limit her ability to walk because they "frequently cause muscle spasms, swollen and painful feet and severe pain in [her] knees."Id. at ¶ 14. The only medical evidence submitted by Lyman consists of the two doctor's notes regarding her requested accommodations. See Karp Decl. Exh. F. Neither note mentions either walking or manual activities. One note recommends only that Lyman "refrain from any bending, pulling, pushing and lifting on her job." Id.

The diagnosis of a physician, however, is primarily relevant as evidence of an impairment. To determine whether that impairment constitutes a disability within the meaning of the statute, the Supreme Court has instructed that,

the ADA requires those "claiming that Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial.

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002) (quoting Albertson's. Inc. v. Kirkinqburq, 527 U.S. 555, 567 (1999) (ellipses and brackets in original). Reading the record in the light most favorable to the non-moving party, the plaintiff has demonstrated that she is an individual with a disability for purposes of summary judgment.

The defendants have not argued that Lyman is not an individual with a disability for the purposes of the Rehabilitation Act, the New York State Human Rights Law or the New York City Human Rights Law. Accordingly, the Court will not rule on these issues.

The Delay in Providing Lyman With Her First Request for Reasonable Accommodation Was Not Unreasonable

In order to prevail on the claim that the defendants failed to accommodate in a timely manner, Lyman must prove that the failure "was motivated by discriminatory intent." Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 202 (S.D.N.Y. 1999) (granting defendant summary judgment on employee's claim of an ADA violation due to three-week delay in granting request for reduced hours); see also Manessis v. N.Y.C. Dep't. of Transportation, 02 Civ. 359, 25 NDLR P 145, 2003 WL 289969, at *17 (S.D.N.Y. Feb. 10, 2003). An "unreasonable delay in providing an accommodation may provide evidence of discrimination." Manessis, 2003 WL 289969, at *17 (quoting Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000).

Defendants argue that the record is devoid of evidence of discriminatory intent. According to defendants, the record shows that Lyman was told shortly after her formal request for accommodation had been received that she could look for a suitable chair in her area or look through a catalog to find "the model that you need." Lyman did neither. After that, defendants argue that "the MIS department and [Salas-Agnoli] thought the chair had been provided by EEO, and EEO believed the that request had been processed through the procurement procedures, and had been provided to [Lyman]." Def. Mem. at 9. When Rodriguez, the EEO Officer, learned that a chair had not been placed in plaintiff's office, she borrowed a suitable chair from another employee. The requested recording device was received in late June, but was not delivered to Lyman because by that time she was not required to take notes.

With respect to Lyman's allegations that defendants failed to accommodate plaintiff for the anchoring project, defendants argue that shortly after receiving the doctor's note on May 30, 2000, defendants met with Lyman and "ordered her to complete the project without `bending, pulling, lifting and pushing,' in a reasonable non-physically intensive manner." Id. at 10.

Defendants argue that Lyman has shown no evidence of discriminatory harassment, for Lyman has not alleged a single specific comment disparaging of her alleged impairments.

Lyman replies that following her formal request for accommodation, defendants did virtually nothing to comply for more than three months, and then provided her with chair only after she had filed an EEOC charge. She also claims that the anchoring assignment inescapably involved physical exertion in contravention of her doctor's orders, and the proposed accommodation suggested by Salas-Agnoli was meaningless.

Considering the record as a whole, there was no unreasonable delay in accommodating Lyman's initial requests. The plaintiff has provided no evidence that the delay of three months in providing the chair was intentional. Following the memo to Lyman from Salas-Agnoli on March 21, 2000, the EEO office initiated the procurement of the chair. When Rodriguez found out from asking Lyman in mid-June that the chair had not arrived, she promptly borrowed one from another employee. As inManessis,

there is nothing here that suggests that the delay plaintiff experienced in receiving [her requested accommodation] was motivated by discriminatory intent. In fact, it appears to have been a negligent oversight on [defendant's] part. Nor can plaintiff offer any evidence to prove that defendants intentionally delayed receipt of the requested device . . .

2003 WL 289969, at *17. Lyman attempts to infer discrimination from the fact that Lyman received her chair only after she filed her first EEOC charge. But even if Rodriguez had expedited Lyman's request after learning of the charge, one cannot necessarily infer that discrimination caused the delay. Because Lyman had made no further requests for accommodation nor notified anyone that her chair had not arrived, despite her claim that she was in "agonizing pain" during that period, Lifton Decl. Exh. B at 136, the inference must be made that Rodriguez was simply unaware that Lyman had not received her chair.

A Factual Issue Exists as to Lyman's Second Request for Accommodation

The same cannot be said of Salas-Agnoli's response to Lyman's second request for accommodation, which was made while Lyman was undertaking the anchoring project. According to the defendants' account, Lyman was simply told to do exactly what she had been doing before, but without bending, pulling, lifting and pushing. However, assuming as alleged that the task involves going "under desks in order to read and record the tag numbers of each computer," Complaint at ¶ 36, it is difficult to know how such a task could be completed without performing activities prohibited by Lyman's physician. While other inferences are possible, Lyman has raised an issue of material fact sufficient to defeat summary judgment on this issue.

Lyman Has Not Shown Evidence of Discriminatory Harassment

In her complaint, Lyman alleged that Salas-Agnoli "would send plaintiff inflammatory and derogatory e-mails, would write false statements about the plaintiff," and subjected Lyman to other harassment. Compl. ¶ 27, subparas. G and H. In response, defendants note that Lyman "fails to allege one comment by defendants disparaging of her alleged impairments." Def. Mem. at 11.

In so responding, defendants have discharged their burden of demonstrating that no factual issue exists by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the moving party's case." Celotex, 477 U.S. at 325. Lyman must therefore provide some kind of evidence to rebut defendant's showing. Instead, Lyman asserts in conclusory fashion that after she requested accommodation she "was subjected to abuse and harassment on the job." Karp Decl. Exh. A at ¶ 19 (Lyman Affidavit). At the this stage of litigation, more is required to raise a factual issue, especially in light of the Second Circuit's observation that in employment discrimination litigation, "it is easy to claim animus."Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002). Accordingly, summary judgment is granted on the harassment claims.

Lyman Has Established a Prima Facie Case of Discriminatory Retaliation

In order to establish a prima facie case of retaliation in violation of the ADA, the plaintiff must show that:

(1) [s]he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against [her]; and (4) a causal connection exists between the alleged adverse action and protected activity.

Treqlia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). The "plaintiff's burden at this stage is de minimis." Id.

Defendants do not contest that Lyman engaged in protected activity, namely requesting accommodations and filing a charge of discrimination with the EEOC in June 2000. They argue, however, that Salas-Agnoli was not aware that Lyman had filed the charge with the EEOC. Knowledge of the accommodation request is not contested. Salas-Agnoli testified that she was not aware of the charge until the filing of the present suit. Lyman responds by citing the testimony of Rodriguez to the effect that she discussed the EEOC charge with Salas-Agnoli. Rodriguez's testimony is sufficient to raise a factual issue as to this element.

As to the third factor, defendants argue that apart from the assignment of Lyman to her prior permanent position on November 20, 2000, Lyman has not provided evidence of any adverse employment action taken against her. A plaintiff has been subjected to an adverse employment action if "he or she endures a `materially adverse change' in the terms and conditions of employment." Galabva v. N.Y.C. Board of Educ., 202 F.3d 636, 640 (2d Cir. 2001) (quoting Richardson v. N.Y.S. Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). For the actions "[t]o be `materially adverse' a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). A "`material adverse change' is one that `has an attendant negative result, a deprivation of a position or an opportunity.'" Pimentel v. City of New York, 00 Civ. 326, 2003 WL 977535, at *3 (S.D.N.Y. May 14, 2002) (quoting Campbell v. Gravline Air Shuttle, Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996). "While adverse employment actions extend beyond readily quantifiable losses, `not everything that makes an employee unhappy is an actionable adverse action.'" Id. (quoting Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002)). Harassment may constitute an adverse action if the plaintiff can demonstrate that the "total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace."Phillips, 278 F.3d at 109 (ruling in the context of a First Amendment retaliation claim).

Lyman replies that her assignment to the anchoring project and the negative evaluations she received in October 2000 also constitute adverse employment actions. Plaintiff notes that the negative employment evaluations formed the basis for her demotion.

The anchoring project did not have an attendant negative result, apart from the apparent discomfort of the task itself. It therefore does not constitute an adverse employment action. The negative employment evaluations, however, do constitute an adverse action because of their apparent connection to the termination of Lyman's probationary services as a Computer Associate (Software) in November 2000. See Trecrlia, 313 F.3d at 720 ("Lesser actions such as negative employment evaluation letters may also be considered adverse."); Branch v. Guilderland Cent. School District, 239 F. Supp.2d 242, 256 (N.D.N.Y. 2003) (same).

Finally, defendants argue that Lyman has established no causal connection between her requests for accommodation or the EEOC charge and any adverse employment action. Lyman's reassignment to her previous permanent position was due to "a long series of problems with her attitude and job performance," Def. Mem. at 14, and not because of any actions that Lyman took with respect to her alleged disability.

Plaintiffs respond that temporal proximity of Lyman's protected activity and the adverse employment action taken against her is sufficient evidence of causality to establish a prima facie case of retaliation.

A causal connection "can be established indirectly by showing that the protected activity was closely followed in time by the adverse action."Loveioy-Wilson v. Noco Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001) (quoting Cifra v. General ElectricCo., 252 F.3d 205, 216 (2d Cir. 2001)). The Second Circuit has "not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship." Id. (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001)).

Lyman made her first request for accommodation on March 13, and a second request on May 30. Such requests are protected activity under the ADA. See Sacay v. Research Foundation of City of New York, 193 F. Supp.2d 611, 631 (E.D.N.Y. 2002) (citing Muller v. Costello, 94-CV-842, 1996 WL 191977, at *6 (N.D.N.Y), aff'd 187 F.3d 298 (2d Cir. 1999). Lyman filed her first Charge of Discrimination with the EEOC, also an activity protected by the ADA, see Lovejoy-Wilson, 263 F.3d at 223, on June 13. The first adverse employment action taken against Lyman was her negative job performance evaluation, dated October 2. See Lifton Decl. Exh. R. The reassignment of Lyman to her previous permanent position took place on November 20.

Defendants argue that because Lyman's supervisor began documenting her dissatisfaction with Lyman's job performance and attitude in February 2000, before Lyman's initial request for accommodation, there can be no inference of retaliation. In support the defendants cite Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.), cert. denied 534 U.S. 951 (2001), which holds that "[w]here timing is the only basis for a claim of retaliation and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." While plaintiffs have submitted a memo from February 29 which precedes the formal request for accommodation (although not the informal request), that memo neither demonstrates a pattern of adverse job actions, nor was it issued "well before" the onset of protected activity.

In view of the approximately four-month period between the last protected activity and the first adverse action, Lyman has put forward sufficient evidence, albeit barely, to avoid summary judgment. See Raniola v. Bratton, 243 F.3d 610, 624 (2dCir. 2001) (prima facie case of discriminatory retaliation established where 14 months elapsed between filing of EEOC complaint and termination); Epstein v. Kemper Ins. Companies, 210 F. Supp.2d 308, 319 (S.D.N.Y. 2002) (six-month period between filing of EEOC complaint and termination of two plaintiffs sufficient to infer causal connection); Vernon v. Port Authority of New York and New Jersey, 154 F. Supp.2d 844, 859 (S.D.N.Y. 2001) (four-month period between start of Port Authority EEO investigation and plaintiff s performance downgrade sufficient to establish causal nexus).

Summary Judgment is Granted As To Defendant Salas-Agnoli on the ADA and Rehabilitation Act Claims

Individual defendant Salas-Agnoli is named in conjunction with each of Lyman's claims. Defendants argue that there is no individual liability for the federal claims and that summary judgment should be granted to Salas-Agnoli on these claims.

While the Second Circuit has yet to decide whether individual liability exists under the ADA and § 504 of the Rehabilitation Act, The Honorable Denny Chin has thoughtfully considered the issue in Hallett v. N.Y.S. Dep't. of Correctional Services, 109 F. Supp.2d 190 (S.D.N.Y. 2000), concluding that there is no individual liability under either statute. The ADA "provides disabled individuals redress for discrimination by a `public entity.' That term, as defined in the statute, does not include individuals." Id. at 199 (quoting Alsbrook v. City of Maumelle, 184 F.3d 999, 1004 n. 8 (8th Cir. 1999) (en banc)). Section 504 is similarly "directed at prohibiting discrimination against the disabled by public entities that receive funding from the federal government." Id. (citing 29 U.S.C. § 794).

Several district courts in this District have also held that the Second Circuit's reasoning in Tomka v. Seller Corp. 66 F.3d 1295, abrogated on other grounds, Burlington Indus, v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), that Title VII does not provide for liability of individual employees, is "equally applicable to the question of individual liability under the ADA." Cerrato v. Durham, 941 F. Supp. 388, 395 (S.D.N.Y. 1996); see also Candelaria v. Cunningham, 98 Civ. 6273, 2000 WL

798636, at *2 (S.D.N.Y. June 20, 2000) (no individual liability under Title II of the ADA or the Rehabilitation Act).

The reasoning of these decisions is persuasive. Accordingly, summary judgment is granted to Salas-Agnoli on the ADA and Rehabilitation Act claims.

Conclusion

For the foregoing reasons, the defendants' motion for summary judgment is granted and Lyman's claims for failure to accommodate her first request for accommodation and her claims for discriminatory harassment are dismissed as well as the ADA and Rehabilitation Act claims against Gloria Salas-Agnoli. Summary judgment as to the remaining claims is denied.

It is so ordered.