McKenzie v Meridian Capital Group LLC

[*1] McKenzie v Meridian Capital Group LLC 2005 NY Slip Op 50937(U) Decided on March 24, 2005 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 24, 2005
Supreme Court, Kings County

Joan McKenzie, Plaintiff,

against

Meridian Capital Group LLC, Defendant.



28593/04

David I. Schmidt, J.

Upon the foregoing papers, defendant Meridian Capital Group LLC moves, pursuant to CPLR 3211 ( a) (7), for an order dismissing plaintiff's complaint for failure to state a cause of action under New York Executive Law § 296 and New York City Administrative Code §§ 8-107(1)(a) and 15(a). Plaintiff Joan McKenzie opposes the instant motion.

Plaintiff alleges that defendant discriminated against her on the basis of disability by terminating her employment. In December 2002, plaintiff commenced working for defendant as a secretary. Before she began working for defendant, plaintiff allegedly sustained injuries in a motor vehicle accident which caused her to suffer severe permanent back pain. Plaintiff avers that she informed defendant, both prior to and during her employment, of said disability. Specifically, plaintiff alleges that she informed her supervisor, Linda Horowitz (Horowitz) that due to her disability she was unable to sit for long periods of time. In January 2003, plaintiff requested a special chair with firmer back support from defendant in order to alleviate some of her lower back pain. Defendant granted plaintiff's request for said chair. In July or August 2003, however, defendant moved its [*2]offices and plaintiff was informed by Horowitz that she would have to relinquish the chair because the new office would be receiving new furniture. Plaintiff's chair was then replaced with a chair that did not provide back support. Plaintiff alleges that she repeatedly requested a chair with back support from defendant from August to November 2003, but that such requests were refused.

With regard to her work attendance, plaintiff avers that due to her disability she would sometimes arrive late to work. Defendant allegedly permitted plaintiff to arrive late to work and to make up lost time by working later into the evening. In November 2003, plaintiff commenced a voluntary leave of absence in connection with her pregnancy. She was eligible for and received six weeks of unpaid disability leave, which ended on December 19, 2003. Upon the expiration of said leave, plaintiff informed Horowitz that she had a doctor's note and would be able to return to work on January 6, 2004. Plaintiff, however, was unable to return to work on January 6, 2004, due to her disability, and thereafter requested, and was granted, twelve additional weeks of unpaid leave in accordance with the Family Medical Leave Act (FMLA). Plaintiff's FMLA leave ended on March 30, 2004. On March 10, 2004, defendant allegedly informed plaintiff that she was expected to return to work on March 15. Plaintiff was not able to return to work on March 15 because her treating physician had advised defendant that plaintiff could not return to work prior to April 12, 2004. Defendant allegedly denied plaintiff's request for further leave and terminated plaintiff on March 24, 2004. The reason proffered by defendant for plaintiff's termination was that it could no longer keep plaintiff's position as a secretary open and available.

"It is well settled that on a motion to dismiss for failure to state a cause of action [pursuant to CPLR 3211 (a) (7)], the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true and according the [non-moving party] the benefit of every possible inference" (Avgush v Town of Yorktown, 303 AD2d 340, 341 [2003]; see also Bernberg v Health Mgt. Sys., Inc., 303 AD2d 348, 349 [2003]; Old Salem Dev. Group, Ltd. v Town of Fishkill, 301 AD2d 639 [2003]; Schneider v Hand, 296 AD2d 454 [2002]; Marec v Lynch, 289 AD2d 541 [2001]). The only issue for the court to determine on a motion to dismiss is whether "the facts as alleged fit within any cognizable legal theory" (Hynes v Griebel, 300 AD2d 628 [2002]; see also PT Bank Central Asia v ABN Amro Bank, N.V., 301 AD2d 373, 375 [2003]; Gruen v County of Suffolk, 187 AD2d 560, 562 [1991]). Accordingly "if from the [pleading's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

"The New York State Human Rights Law prohibits an employer from discriminating against an employee because of a disability" (Matter of McEniry v Landi, 84 NY2d 554, 558 [1994] citing Executive Law § 296[1]). The statute defines the term "disability" as "a physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques" (Executive [*3]Law § 296 [1]). A plaintiff states a prima facie case of discrimination if the individual suffers from a disability and the disability caused the behavior for which the individual was terminated from his or her employment (see Landi, 84 NY at 558). "Except to the extent that the [New York Human Rights Law] supports a broader definition of 'disability'. . . the legal standards for discrimination claims under the [federal Americans with Disabilities Act (ADA)] and under New York State and city law are essentially the same" (see Konipol v Restaurant Assocs., 2002 WL 31618825 [SD NY 2002]; accord Rodal v Anesthesia Group of Onondaga, P.C., 369 F3d 113 [2d Cir 2004]; DaPonte v Manfredi Motors, Inc., 335 F Supp 2d 352 [2004]; Zaborowski v Sealright Co., Inc., 2002 WL 1585521 [ND NY 2002]).

The Human Rights Law makes clear, however, that it only applies to "disabilities which, upon the provision of reasonable accommodations, do not prevent the [plaintiff] from performing in a reasonable manner the activities involved in the job or occupation . . . held" (Executive Law § 292 [21]; Burton v Metropolitan Transportation Corp., 244 F Supp 2d 252 [2003]; see also Fama v American International Group, Inc., 306 AD2d 310 [2003], lv denied NY3d 508 [2004] [employee's deposition testimony that she suffered from a disability which prevented her from performing the duties of her former job in a reasonable manner "was fatal to her claim under [the Human Rights Law]; Giaquinto v New York Telephone Co., 135 AD2d 928, 929 [1987], lv denied 73 NY2d 701 [1998] [employer's decision to terminate employee where employee's condition prevented her from reasonably performing her tasks was not unlawful discrimination under Human Rights Law"]; accord Matter of Schmitt v Kiley, 124 AD2d 661, 662 [1986], lv denied 69 NY2d 612 [1987]). Moreover, pursuant to the statute, "a reasonable accommodation" is an action taken by an employer that permits the disabled employee "to perform in a reasonable manner the activities involved in the job . . . provided, however that such actions do not impose an undue hardship on the business" (Executive Law § 292 [21-e]). "A claim of disability discrimination arising from discharge of an employee based on failure to accommodate is not made out unless the employee's request for a reasonable accommodation has been denied by the employer" (Anyan v New York Life Ins. Co., 192 F Supp 2d 228 [SD NY 2002], affd 2003 WL 21523167 [2d Cir 2003]; accord Mazza v Bratton, F Supp 2d 167, 176 [ED NY 2000] affd 2001 WL 363513 [2d Cir 2001] ; Brown v Triboro Coach Corp., 153 F Supp 2d 172, 186 [ED NY 2001]; Clark v New York State Electric & Gas Corp., 67 F Supp 2d 63 [ND NY 1999]).

In the instant case, plaintiff fails to state a cause of action for disability discrimination. Plaintiff avers in her complaint that defendant "discriminated against [p]laintiff by refusing to accommodate her disability and then terminating her employment." The accommodation allegedly sought by plaintiff was "additional leave time for her disability." Although extensions of medical leave can constitute a reasonable accommodation (see Rogers v New York University, 250 F Supp 2d 310 [SD NY 2002]; Santos v City of New York, 2001 WL 1568813 [SD NY 2001]; Powers v Polygram Holding Inc., 40 F Supp 2d 195 [SD NY 1999], "[t]he duty to make reasonable accommodations does not, of course, require an employer [*4]to hold an injured employee's position open indefinitely while the employee attempts to recover, nor does it force an employer to investigate every aspect of an employee's condition before terminating him based on his inability to work" (Scott v Memorial Sloan-Kettering Cancer Center, 190 F Supp 2d 590 [SD NY 2002]).

Here, plaintiff does not aver that she informed her employer that she would be able to return to work by a specific date or that additional time off would render her capable of reasonably performing her job when she returned. Rather, plaintiff merely alleges that her doctor provided her with a note which stated that she would not be able to return to work prior to April 12, 2004. From the facts pleaded, therefore, the scope of the reasonable accommodation sought by plaintiff is entirely unclear, as is plaintiff's ability to reasonably perform her job upon the provision of such accommodation. Although a specific return date is not required to render an accommodation "reasonable," at the very least the request for additional leave should make clear that said accommodation will allow the employee to perform her job (see generally e.g. Criado v IBM Corp., 145 F3d 437 [1st Cir 1998] [affirming that plaintiff's request for additional leave was not unreasonable even though she did not give a specific return date because her doctor had stated that her condition would improve enough for her to return to work if she was provided with such additional leave as an accommodation]; Powers, 40 F Supp 2d at 202 (in summary judgment context, issue of fact existed concerning the reasonableness of the accommodation requested where plaintiff was unable to predict with certainty his return date to work but his doctor was able to provide a "reasonable estimate" of when plaintiff could resume his job if he was so accommodated]). Accordingly, absent an allegation that plaintiff "could perform the essential functions of the job with . . . reasonable accommodation" (Simms v City of New York, 160 F Supp 2d 398 [2001]), plaintiff's complaint fails to state a cause of action pursuant to New York Executive Law § 296 and New York City Administrative Code §§ 8-107 (1) (a) and 15 (a).

With regard to her claim that defendant "refused to continue the reasonable accommodations which it previously granted to [p]laintiff," plaintiff has also failed to state a cause of action for disability discrimination under the relevant state and local statutes. Plaintiff avers that defendant accommodated her by providing her with a special chair which eased her back pain. Although she further avers that the chair was taken away from her and not replaced, despite her repeated requests, she does not allege that she was unable to perform her job as a result of defendant's actions. Rather, she states that she continued to work for three months after the chair was removed, commenced a voluntary leave of absence in connection with her pregnancy, not her disability, in November 2003, returned to work for an office party in December 2003 where she informed her supervisor that she had a doctor's note and would be returning to work on January 6, 2004, and then was unable to return to work on that date due to her disability. Subsequently, she was granted an additional 12 weeks of unpaid leave in accordance with the FMLA. Since plaintiff does not allege any link between the removal of the chair and her subsequent inability to return to work or that she would have been able to return to work if she had been provided with such accommodation, [*5]plaintiff has failed to state a cause of action for disability discrimination with regard to her claim that defendant refused to continue its provision to her of a reasonable accommodation by its removal of the subject chair.

Since plaintiff has not stated a cause of action for disability discrimination, her retaliation claim must also fail. Plaintiff alleges that defendant retaliated against her by "terminating her employment solely because she required and complained of requiring additional leave time for her disability." Plaintiff's failure, however, to allege that the provision of such additional leave would render her capable of performing her job necessitates both the dismissal of her discrimination claims, as previously discussed, and her related retaliation claim. As a result, defendant's motion to dismiss plaintiff's complaint for failure to state a cause of action, pursuant to CPLR 3211 (a)- (7) is granted in its entirety.

The foregoing constitutes the decision, order and judgment of the court.

Dated: March 24, 2005E N T E R,

J. S. C.