Valentin v Staten Is. Univ. Hosp.

[*1] Valentin v Staten Is. Univ. Hosp. 2009 NY Slip Op 50977(U) [23 Misc 3d 1128(A)] Decided on May 19, 2009 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2009
Supreme Court, Richmond County

Santiago Valentin, Jr., Plaintiff,

against

Staten Island University Hospital and JAMES WINSTON, Defendants.



104522/08

Philip G. Minardo, J.

Defendants' motion to dismiss the complaint is denied.

This action arises out of allegations of employment discrimination against plaintiff, a former employee of Staten Island University Hospital (hereinafter, the "Hospital"), and a member of Local 1199 SEIU United Healthcare Workers East (hereinafter, the "Union"). The Hospital is a member of the League of Voluntary Hospitals and Homes of New York (hereinafter, the "League"), and is a party to the Collective Bargaining Agreement (hereinafter "CBA") between the League and plaintiff's Union.

To the extent relevant, plaintiff was hired by the Hospital on or about August 18, 2003 as an Environmental Service Worker. While at work on March 1, 2004, plaintiff suffered a knee injury and was diagnosed with a torn meniscus. As a result, he was absent from work for "a short amount of time", but was permitted to return to work without physical limitation by his physician on March 7, 2004 (see Complaint para 6-9). Nevertheless, plaintiff was issued a Notice of Disciplinary Action due, at least in part, to his prior absence on May 24, 2004, and was allegedly threatened by a superior, defendant James Winston, that he would be fired "if he missed work [again] due to his knee injury" (id. at 10-11). Approximately one year later, on February 28, 2005, plaintiff suffered a minor back injury while at work, and was advised by his physician to "stay out of work for one week" (id. at 12-14). Plaintiff also alleges that his claim for workers compensation benefits was mishandled on both occasions (id. at 8,16).

In early 2007, plaintiff claims to have re-aggravated his back injury while at work (id. at 18), and was terminated by SIUH on June 4, 2007. With help from the Union, plaintiff disputed the termination (id. at 22), and was eventually reinstated on or about August 7, 2007.[FN1] Approximately one week later, plaintiff went on Family Medical Leave, and did not return to work until March 10, 2008 (id. at 23). Cleared by his physician at that time as "able to work full duty" (see Defendants' Exhibit "C"), plaintiff was subsequently granted a transfer to the position of Senior Patient Care Associate, an alleged promotion (see Complaint, para 24, Defendants' Exhibits "D", "E").

Plaintiff assumed his new duties on March 10, 2008, but within a month thereafter (i.e., from [*2]April 3, 2008 through July 2008), he appears to have submitted approximately twelve separate requests for transfers to "less physically demanding" positions within the Hospital (Complaint, para 30). Each of these requests was denied. While it is undisputed that some of these positions were given to employees with greater seniority (Plaintiff's Exhibits "H", "X"), plaintiff claims that defendants understated his seniority for retaliatory purposes (Complaint, para 30).

On June 21, 2008, the Hospital terminated plaintiff's employment, asserting that he had failed the three-month probationary period for his new position by being absent from work on thirteen separate occasions within a sixty-day period (see Defendants' Exhibits "A", "D", "G"). In addition, and contrary to the allegations in the complaint (see para 21), defendants maintain that plaintiff failed to provide them with any explanation for these diverse absences, or to advise the Hospital that he suffered from any disability (Affidavit of Erica Cotto [FN2], para 16). Plaintiff counters that the Hospital's allegations are pretextual (Plaintiff's Brief in Opposition, p 5) and, eschewing the CBA's grievance procedures, commenced this action for disability-based employment discrimination and retaliation in violation of the State and City Human Rights Laws (Executive Law §296; New York City Administrative Code §8-107, respectively).

In support of their motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(1) and (7), defendants submit copies of the articles of the CBA that govern seniority, probation, and the three-step grievance procedure (see Defendants' Exhibits "A", "H"). In essence, they claim is that the action is premature because plaintiff failed to exhaust the remedies available to him under the CBA.

In general, an employee subject to a collective bargaining agreement which includes a grievance procedure may not sue the employer directly for the breach thereof, even in matters of alleged wrongful termination, but must pursue the grievance procedure set forth in the collective bargaining agreement (see Ambrosino v. Village of Bronxville, 58 AD3d 649, 651 [2nd Dept 2009]). Nevertheless, the existence of such an agreement cannot bar an employee from asserting his or her right to petition a judicial forum where a discriminatory discharge has been alleged (id. at 652). Moreover, any collective bargaining agreement which purports to effect a waiver of an employee's right to seek such judicial redress must be clear and unmistakable on that point (id.).

Here, the underlying CBA does not contain any provision regarding the resolution of disputes involving employment discrimination, let alone any clear and unmistakable language purporting to waive an employee's right to pursue such claims in a judicial forum (see Ambrosino v. Village of Bronxville, 58 AD3d at 652). While it does broadly define a grievance (in Article XXXI) as "a dispute or complaint arising between the parties hereto under or out of this Agreement or the interpretation, application, performance, termination, or any alleged breach thereof" (Defendants' Exhibit "B"), the complaint in the pending action is not based upon allegations of breach of contract, but on disability-based discrimination and retaliation, both of which are noncontractual matters (id.; cf. Matter of Amorosano-LePore v. Grant, 56 AD3d 663 [2nd Dept 2008]; Matter of Miller v. County of Nassau, 297 AD2d 344 [2nd Dept 2002]; Kropp v. Incorporated Vil of Freeport, 277 AD2d 289 [2nd Dept 2000]).

"To state a prima face case of employment discrimination due to a disability under both the Executive Law §296 and the New York City Administrative Code §8-107, a plaintiff must show that he or she suffers from a disability and that the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment" (Ruane-Wilkens v. Board of Educ of City of NY, 56 AD3d 648, 649 [2nd Dept 2008] [internal quotation marks [*3]omitted]; Staskowski v. Nassau Community Coll, 53 AD3d 611 [2nd Dept 2008]; McKenzie v. Meridian Capital Group, LLC, 35 AD3d 676, 677 [2nd Dept 2006]; Thide v. New York State Dept of Transp, 27 AD3d 452, 453 [2nd Dept 2006]). For these purposes (see Executive Law §292[21]), the term "disability" is limited to those conditions, which, upon the provision of reasonable accommodation, do not prevent the complainant from performing in a reasonable manner the activities involved in the job held (see Staskowski v. Nassau Community Coll, 53 AD3d at 611; McKenzie v. Meridian Capital Group, LLC, 35 AD3d at 677). Thus, the law is designed to prevent discrimination against a person who has a disability but who, can still be a productive worker with reasonable accommodation (see Giaquinto v. New York Tel Co, 135 AD2d 928 [3rd Dept 1987]). If the individual's disability actually prevents him or her from performing the job in a reasonable manner, then a discharge based on poor performance does not constitute unlawful discrimination (id. at 928). In order to set forth a prima face case of failure to accommodate, a plaintiff must show that (1) he has a disability, (2) his employer had notice of the disability, (3) he could perform the essential functions of his job with reasonable accommodations, and (4) the employer refused to make such reasonable accommodations (see Graves v. Finch Pruyn & Co., 457 F3d 181, 184 [2d Cir 2006]). Pursuant to Executive Law §292(21)(e), "reasonable accommodation" includes "provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested".

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction; accept all of the facts alleged in the complaint as true; accord the plaintiff the benefit of every possible favorable inference; and determine only whether the facts alleged fit within any cognizable legal theory (see McKenzie v. Meridian Capital Group, LLC, 35 AD3d at 676; Mitchell v. TAM Equities, Inc., 27 AD3d 703, 704 [2nd Dept 2006]). Under this standard, the complaint at bar is sufficient.

Here, plaintiff alleges that he continued to perform his duties in a reasonable manner despite defendants' failure to make any reasonable accommodation of his disability by serially declining his various transfer requests for less physically demanding positions.[FN3] While it appears that several of plaintiff's twelve transfer requests were denied based upon claims of a lack of seniority (Plaintiff's Exhibits "H", "X"), plaintiff also alleges that his actual seniority was routinely understated due to retaliatory miscalculations. Plaintiff returned to work as a full time "Senior Patient Care Associate" on or about March 10, 2008 with no apparent complaint about the physical demands of the job, but almost immediately began applying unsuccessfully for transfers to less strenuous positions.[FN4] As alleged by plaintiff, each was denied in retaliation for his earlier success at securing reinstatement. In addition to a lighter duty assignment, plaintiff claims that reasonable accommodation was also possible in the position as a Senior Patient Care Associate through his request for flexibility of his work schedule (see Plaintiff's Brief in Opposition, pp 22, 26).

Moreover, granting plaintiff the benefit of every favorable inference, plaintiff has alleged that [*4]the defendants were aware of his disability and aware of his requests for reasonable accommodation (see Complaint, para 14, 20-23).[FN5] Generally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed (see Brady v. Wal-Mart Stores, Inc., 531 F3d 127, 135 [2d Cir 2008]). However, an employer has an independent duty to reasonably accommodate an employee's disability if it is obvious or if the employer knew or reasonably should have known that the employee was disabled (see Brady v. Wal-Mart Stores, Inc., 531 F3d at 135-136).

Under these circumstances, and solely for purposes of this motion, the complaint can therefore be seen to allege both defendants' awareness of plaintiff's claimed disability and their refusal to provide him with reasonable accommodation (see Mitchell v. TAM Equities, Inc., 27 AD3d 703, 706; cf. McKenzie v. Meridian Capital Group, LLC, 35 AD3d at 676).[FN6]

Pursuant to both Executive Law §296 and New York City Administrative Code §8-107, it is unlawful to retaliate against an employee because he or she opposed statutorily-forbidden discriminatory practices (see Ruane-Wilkens v. Board of Educ of City of NY, 56 AD3d at 649). To make a prima face showing of retaliation, a plaintiff must show that: (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action against said plaintiff, and (4) there was a causal connection between the protected activity and the adverse employment action (id.; see Thide v. New York State Dept of Transp, 27 AD3d at 454). In this regard it has been held that participation in a "protected activity", merely requires only that a plaintiff "demonstrate that he had a good faith, reasonable belief that challenged actions of the employer violated the law" (Kemp v. A & J Produce Corp, 164 Fed Appx 12, 15 [2d Cir 2005]; cf. McKenzie v. Meridian Capital Group, LLC, 35 AD3d at 677).

Here, plaintiff asserts that after he successfully grieved his initial termination on a claim of disability discrimination, he was denied numerous job transfers due to an alleged improper [*5]calculation of his seniority. In opposition, defendants argue that plaintiff's reinstatement as a Senior Patient Care Associate was considered a promotion (see Defendants' Exhibits "D", "E") and as such should negate plaintiff's retaliation claim. Nevertheless, plaintiff has alleged that his arbitration victory under the CBA was the retaliatory motive behind the numerous denials of his transfer requests to less strenuous positions (see Complaint, para 30-34). By so doing, defendants forced him to remain in his position as "Senior Patient Care Associate", which resulted in plaintiff's sustaining a greater rate of absences that ultimately lead to his dismissal (id.). In this regard, it should be noted that a job transfer can constitute a materially adverse action even if did not affect any change in the employee's salary, benefits, title, grade or hours of work (see Marshall v. NYC Bd of Elections, ___F3d___, 2009 US App Lexis 7354 at 5 [2d Cir][internal quotation marks and citation omitted]; Wanamaker v. Columbian Rope Co., 108 F3d 462, 466 [2d Cir 1997]), and that the denial of transfer may be held to constitute an adverse employment action (see Beyer v. County of Nassau, 524 F3d 160, 164 [2d Cir 2008]). Therefore, affording the pleadings a liberal construction and construing the language of the allegations and the supporting papers in the light most favorable to the plaintiff it is the Court's opinion that plaintiff has sufficiently stated a cause of action against defendants based on unlawful retaliation.

Likewise, the complaint is sufficient to state a cause of action against defendant James Winston pursuant to Executive Law §296(6), which imposes liability upon individuals who aid and abet an employer that commits employment discrimination in violation of Executive Law §296(1) (see Mitchell v. TAM Equities, Inc., 27 AD3d at 707).

Notwithstanding defendants' articulation of a potentially nondiscriminatory reason for their actions, plaintiff should be afforded a full and fair opportunity to conduct discovery in support of his allegations (see Mohammad v. Board of Mgrs of 50 E 72nd St Condominium, 262 AD2d 76 [1st Dept 1999]).

Accordingly, it is

ORDERED that defendants' motion to dismiss the complaint is denied.

ENTER,

s/ Philip G. Minardo

J.S.C.

DATED: May 19, 2009 Footnotes

Footnote 1:The parties currently dispute whether plaintiff claimed disability discrimination in the 2007 grievance proceedings. Based on the allegations in the Complaint (see para 30-31) the Court will accept these allegations as true for purposes of this motion and will treat the 2007 grievance as a "protected activity".

Footnote 2:Erica Cotto is the Labor and Employee Relations Manager for the Hospital.

Footnote 3:To support his claim that he performed his duties in a "reasonable manner", plaintiff submits letters containing accolades from Donna Proske, the Executive Vice President, Chief Operating Officer and Chief Nurse Executive of the defendant hospital dated, respectively, on April 25, 2008 and July 2, 2008 (Plaintiff's Exhibits "Y", "Z").

Footnote 4:Granting plaintiff the benefit of every favorable inference possible, it must be noted that reassignment to an existing, vacant position can constitute "reasonable accommodation." However, an employer is not required to create a new position for a disabled worker (see Graves v. Finch Pruyn & Co., 457 F3d at 187).

Footnote 5:Through his pleadings, plaintiff may be seen to allege that from the very nature of his Family Medical Leave and Workers' Compensation proceedings defendants knew or should have known of his back disability (Plaintiff's Exhibit "V"). In fact, the medical records submitted by plaintiff include a follow-up progress note dated February 14, 2008, indicating that plaintiff "should be able to work as a Patient Care Assistant [so long as his] weight lifting [was limited to] less than 25 lbs." (Plaintiff's Exhibit "K"). Nevertheless, it must be acknowledged that a disability certificate dated March 5, 2008 cleared plaintiff to return "to work full duty" (Defendants' Exhibit "C"). What is unclear to the Court at this time is the relationship between the March 2008 disability certificate and the February progress note, which appear facially inconsistent. However, it is possible that the "full duty" referred to in the March certificate carries with it the weight limitation contained within the February progress note, and at this early stage of the proceedings, plaintiff would appear to be entitled to the benefit of every possible favorable inference.

Footnote 6:Defendants assert that plaintiff's "excessive absenteeism" is a legitimate and nondiscriminatory reason for their action in terminating plaintiff's employment. On a summary judgment motion, this would require a plaintiff to go forward with proof of a triable issue of fact that the reasons given for his or her discharge were solely pretextual (see generally Haviland v. Yonkers Pub Schools, 21 AD3d 527 [2nd Dept 2005]; Rastogi v. New York State Off of Mental Health, 21 AD3d 886 [2nd Dept 2005]; Giaquinto v. New York Tel Co, 135 AD2d 928 [2nd Dept 1987]). However, this is not a motion for summary judgment, nor has it been converted into such under CPLR 3211(c).