Opinion
14-CV-07094 (LDH) (RML)
2019-08-20
Alice SOSA, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; Marcy Berger, in her official and individual capacities, Alexandra Markovich in her official and individual capacities; Nancy Bucella, in her official and individual capacities, and Gerri Edwards, in her official and individual capacities, Defendants.
Deirdra Jeneva Brown, The Law Office of D. Jen Brown, Poughkeepsie, NY, Jimmy M. Santos, Jimmy M. Santos PLLC, Cornwall, NY, for Plaintiffs. Eric Theodore Murrell, Gary Moy, New York City Law Department, Stephen Paul Pischl, Clifton Budd & DeMaria LP, Liliya Perelman Kramer, NYC Law Department, New York, NY, Defendants.
Deirdra Jeneva Brown, The Law Office of D. Jen Brown, Poughkeepsie, NY, Jimmy M. Santos, Jimmy M. Santos PLLC, Cornwall, NY, for Plaintiffs.
Eric Theodore Murrell, Gary Moy, New York City Law Department, Stephen Paul Pischl, Clifton Budd & DeMaria LP, Liliya Perelman Kramer, NYC Law Department, New York, NY, Defendants.
MEMORANDUM AND ORDER
LaSHANN DeARCY HALL, United States District Judge:
Plaintiff Alice Sosa brings this employment-discrimination action against Defendants New York City Department of Education ("DOE"), Marcy Berger, Alexandra Markovich, Nancy Bucella, and Gerri Edwards. At a January 30, 2017 pre-motion conference, Plaintiff voluntarily withdrew several claims. By memorandum and order dated September 20, 2018, the Court granted Defendants' motion for summary judgment as to all of Plaintiff's remaining claims except those asserted under the Americans with Disabilities Act ("ADA"), New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL") for failure to accommodate Plaintiff's October 2013 request to change her lunch schedule. (See generally Mem & Order, ECF No. 45.) On July 10, 2019, the Court held an evidentiary hearing regarding the basis for the request and heard testimony from Plaintiff's physician, Dr. Timothy Robinson, D.O. Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, the Court informed Plaintiff that an evidentiary basis for her claims appeared to be lacking and that, to avoid dismissal of her remaining claims, Plaintiff must adduce evidence demonstrating a nexus between her request for a lunch-schedule accommodation and a qualifying disability.
BACKGROUND
The Court assumes the parties' familiarity with the relevant facts, which are set forth in the Court's September 20, 2018 memorandum and order.
STANDARD OF REVIEW
"Under Rule 56(f), district courts have discretion to grant summary judgment sua sponte ‘[a]fter giving notice and a reasonable time to respond’ and ‘after identifying for the parties’ material facts that may not be genuinely in dispute.’ " Treistman Next Friend for AT v. Greene , 754 F. App'x 44, 46 (2d Cir. 2018) (quoting Fed. R. Civ. P. 56(f) ). The same evidentiary standards apply to summary-judgment determinations made sua sponte pursuant to Rule 56(f) and those made by motion pursuant to Rule 56(a). See 6801 Realty Co., LLC v. U.S. Citizenship & Immigration Servs. , 719 F. App'x 58, 60 & n.2 (2d Cir. 2018) (summary order) (applying Rule 56(a) standard to Rule 56(f) decision). Summary judgment must be granted when there is "no genuine dispute as to any material fact and the movant[s] [are] entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. The movants bear the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 330–31, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Feingold v. New York , 366 F.3d 138, 148 (2d Cir. 2004). Where the non-movant bears the burden of proof at trial, the movants' initial burden at summary judgment can be met by pointing to a lack of evidence supporting the non-movant's claim. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548.
Once the movants meet their initial burden, the non-movant may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; see also Anderson , 477 U.S. at 250, 106 S.Ct. 2505 ; Davis v. New York , 316 F.3d 93, 100 (2d Cir. 2002). The Court is to believe the evidence of the non-movant and draw all justifiable inferences in her favor, Anderson , 477 U.S. at 255, 106 S.Ct. 2505, but the non-movant must still do more than merely assert conclusions that are unsupported by arguments or facts. Castro v. Cty. of Nassau , 739 F. Supp. 2d 153, 165 (E.D.N.Y. 2010) (citing Bellsouth Telecomms., Inc. v. W.R. Grace & Co. , 77 F.3d 603, 615 (2d Cir. 1996) ). That is, the non-movant cannot survive summary judgment merely by relying on the same conclusory allegations set forth in her complaint. See Murphy v. Lajaunie , No. 13-cv-6503, 2016 WL 1192689, at *2 (S.D.N.Y. Mar. 22, 2016) (citing Kerzer v. Kingly Mfg. , 156 F.3d 396, 400 (2d Cir. 1998) ).
DISCUSSION
A plaintiff's failure to establish a nexus between her qualifying disability and her request for an accommodation is fatal to a claim for failure to accommodate. Rogers v. Roosevelt Union Free Sch. Dist. , 553 F. App'x 88, 89 (2d Cir. 2014) (summary order); Felix v. N.Y.C. Transit Auth. , 324 F.3d 102, 104–05 (2d Cir. 2003). No such nexus is present here.
Courts apply the same standards to accommodation claims under the ADA, the NYSHRL, and the NYCHRL. Lawtone-Bowles v. City of New York , No. 17-CV-8024, 2019 WL 652593, at *6 (S.D.N.Y. Feb. 15, 2019).
Here, Plaintiff underwent bilateral nipple-areolar reconstruction surgery on October 21, 2013. (Brown Aff. Ex. 29 at 25–26, ECF No. 39-38.) Subsequently, Plaintiff made a request to Defendants to change her 10:30 a.m. lunch schedule to a later time. (Defs.' Reply Statement Resp. Pl.'s Statement Additional Material Facts ("Defs.' Reply 56.1") ¶ 32, ECF No. 40-17.) Plaintiff supported her request with an October 30, 2013, letter from her physician, Dr. Robinson, clearing Plaintiff to return to work on November 4 and stating as follows: "Due to patient's medical condition it is advisable that patient not be given lunch prior to 12pm status-post surgery." (Defs.' Reply 56.1 ¶ 33; Brown Aff. Ex. 28A, ECF No. 41-28.) A November 7, 2013 letter from Dr. Robinson added: "Failure to allow patient to take midday lunch may be detrimental to her health." (Brown Aff. Ex. 28B, ECF No. 41-28.)
For the purpose of this decision, the Court assumes, but does not decide, that Plaintiff experienced a qualifying disability under the ADA following her nipple-areolar-reconstruction surgery. See generally 42 U.S.C. § 12102(4)(D) ("An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active."); 29 C.F.R. § 1630.2(j)(3)(iii) (noting that "it should easily be concluded that ... cancer substantially limits normal cell growth," a major life activity); see also Felix v. N.Y.C. Transit Auth. , 324 F.3d 102, 107 (2d Cir. 2003) ("Adverse effects of disabilities and adverse or side effects from the medical treatment of disabilities arise ‘because of the disability.’ ").
At the July 10, 2019 evidentiary hearing, Dr. Robinson testified that he did not recall a medical basis for the request. (Tr. 18:5–8, ECF No. 68-1.) Rather, Dr. Robinson stated that "over the years [Plaintiff had] asked [him] for a number of letters for various reasons, and most of time [he] would accommodate if it didn't seem unreasonable." (Tr. 18:2–4.) As to the October 30 and November 7 letters at issue, Dr. Robinson speculated, "It would seem like it was after surgery and that might have been a reason that she thought it would be helpful to have lunch at a later time." (Tr. 18:8–10.) Asked whether his October 30 and November 7 letters were based on his concern that the surgery limited Plaintiff's "ability to conduct certain life activities," Dr. Robinson responded that "certainly after surgery if you have a good eating schedule it would help healing as a general principle. But as far as specifics to the breast surgery, [he] couldn't say that." (Tr. 19:15–23.) He further speculated that "if [Plaintiff] simply wasn't hungry [at 10:30 a.m.] and then because she wasn't hungry she didn't eat, and then as a result her failure to eat could be detrimental to her health." (Tr. 20:17–21.) Dr. Robinson could not think of "any reason other than [Plaintiff's] lack of appetite that would prevent her from having a lunch pre-midday." (Tr. 21:4–7.) Dr. Robinson's recollections are supported by Plaintiff's deposition testimony. Asked why she had requested a later lunch, Plaintiff testified, "Because I have breakfast in the morning, at 10:30 I'm not hungry and then when in the afternoon I'm shaking I'm in the class and the nurse has to come in." (Sosa Dep. 104:2–4, ECF No. 39-43.) Asked how Defendants' failure to accommodate her request had affected her health, Plaintiff testified, "Prior my lunch period was much later and I had more flexibility in my schedule." (Id. at 104:23–105:1.) Plaintiff has not adduced any evidence regarding her post-surgery status apart from her and Dr. Robinson's testimony summarized above.
In her July 17, 2019 letter brief, Plaintiff suggests that her March 2013 hernia-repair surgery also factored into her request for a lunch-schedule accommodation. (ECF No. 67.) In light of the timing of the request and the plain language of Dr. Robinson's letters, Plaintiff's contention is implausible. Moreover, such a contention is contrary to the Court's September 20, 2018 summary-judgment decision, which expressly narrowed the issue to the nipple-areolar-reconstruction surgery. (Mem. & Order 15–16, ECF No. 45.)
Even drawing all justifiable inferences in Plaintiff's favor, the evidence does not support Plaintiff's claims for failure to accommodate. At most, the evidence shows that Plaintiff was not generally hungry at 10:30 a.m. because of her chosen breakfast time. There is simply no evidence to support the contention that Plaintiff requested an accommodation of her lunch schedule because of her surgery. In other words, there is no nexus between Plaintiff's purported disability and her accommodation request. Plaintiff's argument that "a jury could easily find that Ms. Sosa requested a change in her lunch schedule, post-nipple reconstruction surgery, in an effort to care for herself and to help her body return to ‘baseline’ " is undermined by Plaintiff's own testimony that she was not hungry at 10:30 a.m. because she ate breakfast in the morning. (Compare ECF No. 67 at 3 with Sosa Dep. 104:2–3, 107:15–17.) Accordingly, the claims are ripe for dismissal as a matter of law.
CONCLUSION
For the foregoing reasons, the Court grants summary judgment in favor of Defendants as to Plaintiff's remaining claims, which are dismissed with prejudice.
Defendants' July 3, 2019 motion to amend the joint pretrial order and Plaintiff's July 17, 2019 motion in limine are denied as moot. (ECF Nos. 65, 67.) Defendants' July 17, 2019 motion for summary judgment (ECF No. 68), which they did not seek leave of the Court to file, is denied as untimely. See Fed. R. Civ. P. 56(b). The Court's July 10, 2019 order permitted Defendants to file a letter brief regarding solely the nexus issue discussed in this opinion. It did not permit Defendants another unfettered bite at the summary-judgment apple. In any event, the Court has granted Defendants the ultimate relief they seek.
SO ORDERED.