Krist v OppenheimerFunds, Inc.

[*1] Krist v OppenheimerFunds, Inc. 2007 NY Slip Op 52494(U) [18 Misc 3d 1111(A)] Decided on December 20, 2007 Supreme Court, New York County Shulman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2007
Supreme Court, New York County

Joseph Krist, Plaintiff,

against

OppenheimerFunds, Inc., Defendant.



603363/06



Plaintiff's Counsel: Vladeck, Waldman, Elias & Engelhard, P.C., by Anne L. Clark, Esq.

Defendant's Counsel: Epstein Becker & Green, P.C., by Barry Asen, Esq.

Martin Shulman, J.

Defendant, OppenheimerFunds, Inc. ("OFI" or "Defendant"), moves for summary judgment (CPLR § 3212) in its favor dismissing plaintiff, Joseph Krist's ("Krist" or "Plaintiff") complaint. Relying on N.Y.C. Adm. Code §8-107, et seq. (New York City Human Rights Law ["NYCHRL"])[FN1], Plaintiff's complaint (Exhibit L to Asen Affirmation ["Asen Aff."] in Support of Defendant's Summary Judgment Motion) essentially alleges that OFI discriminated against him in failing to find him alternative employment within New York City ("NYC" or the "City") and/or failed to reasonably accommodate his disability by allowing Krist to work from his home during a certain three-month trial period. Plaintiff opposes the summary judgment motion.

Relevant Background

On April 17, 2003, Krist filed a federal complaint against OFI alleging age/disability discrimination claims captioned Krist v. OppenheimerFunds, Inc., Index [*2]No. 03-CV-2698 (LTS) (the "Federal Action"). After joinder of issue and discovery, OFI moved for summary judgment. On August 22, 2006, Judge Laura Taylor Swain issued an Opinion and Order granting OFI summary judgment dismissing Krist's age discrimination claims brought under the federal Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634, NY Executive Law § 290 and NYCHRL §8-107, et seq. (see Slip Opinion published as 2006 WL 2422674 [S.D.NY] annexed as Exhibit K to Asen Aff.)(the "Fed. Decision"). This court will summarize much of the undisputed background information as gleaned from the Fed. Decision. The factual background narrative will also contain other information garnered from the parties' respective affidavits, affirmations, deposition transcripts and memoranda of law without specifically referencing these points to portions of either the Fed. Decision or these other sources of record.

Krist began working for OFI in 1989 and eventually achieved the position of Senior Municipal Bond Analyst on the Municipal Bond Team located in NYC ("NY-MBT") which was a part of the Fixed Income Group. Plaintiff reported to Merrell Hora ("Hora") a portfolio manager and NY-MBT Leader who in turn answered to Jerry Webman ("Webman"), the Fixed Income Group Supervisor. Krist, among other duties, analyzed and reported on outstanding and new municipal bond issues, made appropriate recommendations thereto and monitored all relevant corporate activity that could potentially impact current investments. In addition to Krist and Hora, and relevant to this action, the NY-MBT also included employees Mark Paris ("Paris"), Brian Reid ("Reid") and Heidi Heikenfeld ("Heikenfeld").

Prior to the September 11, 2001 atrocity ("9/11"), OFI had maintained its offices on the 32nd and 33rd floors in the second tower of the World Trade Center. On 9/11, as the first plane struck the first tower, Plaintiff and co-workers had just exited the building. Krist witnessed the second plane colliding into the second tower and the Twin Towers' collapse as he was escaping "Ground Zero" on foot. As a result of his traumatic experience on 9/11, Krist was diagnosed with post traumatic stress disorder ("PTSD") and began experiencing gastrointestinal problems as well. In January 2002, his treating physicians clinically determined he was suffering from a possible organ rupture. After emergency surgery, his surgeon corroborated that a portion of Plaintiff's bowel ruptured requiring a partial resection and a colostomy.[FN2] Plaintiff was granted medical leave for a month with full pay and the right after gradual recovery to work from his home without commuting to NY-MBT's new offices. Krist underwent a second surgery in April 2002 [*3]and was on paid medical leave for another month.

Towards the end of May 2002, Plaintiff again started working full time from his home. That same month, Webman and Leonard Darling, OFI's Chief Investment Officer, made a decision to move the NY-MBT to Rochester to merge same with the MBT there ("Rochester-MBT"). At that time, Ronald Fielding ("Fielding"), a Senior Vice President and Portfolio Manager, supervised the Rochester-MBT. Fielding expected the members of the NY-MBT to adapt to the Rochester Style.[FN3] In June 2002, Webman and Amy Adamshick, OFI's Vice President for Human Resources ("Adamshick"), met with the NY-MBT members concerning the merger of the MBTs. It was expected that Fielding would interview each NY-MBT member and evaluate his/her suitability to join the Rochester-MBT. If mutually agreed to, that member would transfer to Rochester on July 1, 2002, work there for a three month trial period and, again upon mutual agreement, then work there permanently. Prior to their respective interviews, Webman apparently communicated laudatory comments and observations to Fielding about the younger NY-MBT members: Heikenfeld, Reid and Paris.

As a result of his medical condition during the period January-June 2002, Krist lost a great deal of weight and had limited stamina. Plaintiff had certain dietary, travel and weight-lifting restrictions and wore loose fitting pants to promote surgical scar healing. On June 10, 2002, Fielding interviewed Krist and the other NY-MBT members and only expressed reservations about Plaintiff. Nonetheless, Craig Dinsell, OFI's Executive Vice President for Human Resources, directed that all the NY-MBT members be offered this three month trial period option and Fielding then formally offered all of the NY-MBT members this option, requiring them to begin commuting to Rochester on July 1, 2002. Notably, this trial period was set up to gauge each member's potential to adapt to the Rochester Style. In addition, each NY-MBT member was afforded the opportunity to either exercise the Rochester option, search for another OFI position in the City, if any, or resign with appropriate severance pay.

In June 2002, Plaintiff had oral and written communications with Webman and Adamshick about the unfeasibility of his commuting to Rochester even on a trial basis with a July 1st start date inter alia because of medical, psychological and other factors and corroborated some of these factors with supporting documentation. Krist strenuously urged OFI to allow him to complete his trial period at home. With a claimed immutable start date of July 1st, Krist requested other options. One option would have ostensibly allowed Plaintiff to take a disability leave with reduced pay until he fully recovered and then begin the required commute to complete his trial period with the Rochester-MBT. Believing he was not really given this option, Plaintiff sought any open OFI position in the City. Relying on an OFI Open Job Report, Krist interviewed for two [*4]positions: (1) Senior High-Grade Investment Analyst (analyzing corporate, investment grade taxable bonds in the telecommunications field); and (2) Fixed Income Product Manager (engaging in sales and marketing of taxable bonds)(collectively, the "Two City Positions"). OFI did not offer him either of the Two City Positions, but instead hired persons purportedly more qualified in these areas and who had the requisite educational background and experience to fill these positions. Among the other four members of the NY-MBT who declined the Rochester-MBT option, Reid became an analyst with OFI's NYC Fixed Income High Yield team based on his prior work experience and Heikenfeld, then a Municipal Bond Junior Analyst earning $57,500, was given a position as a Junior Analyst on OFI's NYC Global Equity Team at the same salary. Hora and Paris resigned and found employment elsewhere. OFI then terminated Plaintiff's employment as a Senior Municipal Bond Analyst on July 26, 2002. He then earned a salary of $140,000.00. In April 2003, Krist took a position with First Albany Capital Inc. in the City at a salary of $120,000.00.

Defendant's Summary Judgment Motion

Relying on the Fed. Decision and doctrine of collateral estoppel, OFI seeks summary judgment dismissing Plaintiff's disability/perceived discrimination claim that OFI failed to find him alternative employment within the City. In the Fed. Decision, Judge Swain granted OFI summary judgment of dismissal as to Plaintiff's age discrimination claim. After searching the fully developed record, particularly to determine whether Plaintiff met his burden in proving that his termination was grounded on age discrimination, the Federal Court concluded that OFI had, in fact, hired persons more qualified than Krist to fill the desired Two City Positions. The Fed. Decision stated, in relevant part: "Plaintiff has failed to present sufficient evidence that the [Two City] [P]ositions he interviewed for were subsequently filled by less qualified candidates . . ." (bracketed matter added)(Exhibit K to Asen Aff. at p. 7). Stated differently, the Fed. Decision made it clear that discrimination was not a factor in Krist not being offered the alternative Two City Positions. As to Plaintiff's claim that OFI's decisions not to offer him certain City positions given to fellow NYC-MBT members Reid and Heikenfeld and to terminate him were pre-textual, Judge Swain found same to be equally unavailing:

Plaintiff did not apply for . . . [these] position[s] and has not provided the Court with any evidence that he was qualified for the positions that Reid and Heikenfeld obtained. Thus . . . [this] evidence . . . is, in and of itself, insufficient to support an inference of pretext. Plaintiff has failed to present evidence sufficient to support an inference that Defendant's proffered reasons for terminating his employment and denying him alternative positions for which he applied were pretexts for age discrimination regarding his termination (bracketed matter added). Id.

Defendant urges the same result in this action because Plaintiff is collaterally estopped from re-litigating whether he was more qualified than others who obtained any and all open OFI City positions.

Defendants also seek summary judgment dismissing Krist's claim that OFI failed to reasonably accommodate his disability by allowing Krist to work from his home during the three-month trial period. In this context, OFI argues that Plaintiff unreasonably [*5]rejected its alternative option to take an open-ended disability leave of absence at reduced pay and fully recover before starting his commute to Rochester for the trial period with the Rochester-MBT. Defendant argues that Plaintiff did not meet his burden of showing OFI refused an objective, reasonable accommodation as the "work-from-home accommodation that he proposed was patently unreasonable . . ." (Defendant's Memorandum of Law in Support of Summary Judgment Motion at p. 16). This was because the demands of the Rochester Style of municipal bond trading inter alia required its members to regularly interact at the Rochester offices and to travel extensively to inspect municipal project sites and attend national conferences. Relying on federal appellate and decisional case law (Id., at pp. 17-19), OFI further contends that a disabled employee's request to work at home can properly be deemed unreasonable where the job's essential function is at the workplace. On the other hand, OFI claims it did reasonably accommodate Krist by offering an open-ended leave of absence.

In opposition to OFI's summary judgment motion, Krist contends the following:

NYCHRL § 8-107, et seq., as amended by the Local Civil Rights Restoration Act of 2005, is required to be construed liberally to accomplish its broad and remedial purposes, and against this statutory backdrop, Plaintiff's disability (unlike an older employee requiring a level playing field to be treated equally as younger employees) did require Defendant to treat him differently than non-disabled employees;

This being the case, there are outstanding issues of fact concerning Krist's accommodation claim as OFI's purported proposed accommodations did not address all of Krist's disabilities (e.g., emotional disability, etc.) and Defendant either overlooked the extensive nature of Plaintiff's physical disabilities and/or ignored his emotional disability;[FN4]

Webman advised Plaintiff that he was qualified for either of the Two City Positions and encouraged him to apply for same;

Admittedly, Krist was unable to commute to Rochester by the July 1st start date and/or find alternative OFI City positions. Because he was unwilling to accept a severance package, Plaintiff sought more time and assistance towards his OFI job search and OFI did not heed his request;

It is seriously disputed whether Adamshick had the authority to offer Krist an open-ended leave of absence;

Even if such disability leave was offered, Krist could not justify accepting such an accommodation because his treating physician cleared him to temporarily work from his home in June 2002, and would have shortly cleared Plaintiff to work from an OFI City office;

In this context, Defendant's reliance on federal case law for the proposition that a leave of absence is a reasonable accommodation if the employee was truly disabled is misplaced here as Plaintiff was fully capable of working from home;

Commuting to Rochester immediately after his physical recovery would not have addressed Krist's PTSD resulting from 9/11 (a disability OFI seemingly ignored), as he needed an accommodation to facilitate his adjustment to a City office setting surrounded by a safety net of family and friends, all situated in NYC;

The functions of the NYC-MBT and Rochester-MBT were identical except for the obvious change of Plaintiff's immediate supervisor and office location, thus, Krist was fully capable of performing all of the essential functions as a Senior Municipal Bond Analyst at home during the three month trial period and afterwards in a OFI City office; and

Notwithstanding Defendant's contrary protestations, Krist has made a prima facie showing of disability/perceived discrimination and raised material issues of fact regarding Plaintiff not being offered: (1) the Rochester position; (2) either of the Two City Positions; (3) open OFI City positions given other NYC-MBT members; and (4) temporary work-from-home and City office accommodations, and in that Defendant's rationale for its varied denials was pretextual. Thus, the foregoing can only be resolved after a jury trial.

In reply, OFI restates its entitlement to summary judgment because: the collateral estoppel doctrine grounded on Judge Swain's findings in the Fed. Decision [*6]bars Krist's disability claim even if same is now grounded on the HRL; OFI reasonably accommodated Plaintiff by offering him an open-ended leave of absence which was the only viable option; OFI was not required to accommodate Plaintiff by acceding to his unreasonable requests to temporarily work at home or at a NYC office because Plaintiff would not have met the essential functions necessary to satisfy the needs of the Rochester-MBT; OFI was not required to accommodate Plaintiff by transferring him to other OFI City positions and/or providing assistance and extending his time to find a comparable OFI City position, if any; and none of OFI's actions after its business decision to merge the NYC-MBT with the Rochester-MBT up to and including its ultimate decision to terminate Krist's employment was pre-textual.

DISCUSSION

Summary Judgment

An award of summary judgment is appropriate when no issues of fact exist. See CPLR 3212(b); Sun Yau Ko v. Lincoln Sav. Bank, 99 AD2d 943, 473 NYS2d 397 (1st Dept., 1984), aff'd 62 NY2d 938, 479 NYS2d 213 (1984); Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131 (1974). In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to eliminate any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 853, 487 NYS2d 316 (1985); Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923 (1986). Indeed, the moving party has the burden to set forth evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 (1979).

While the moving party has the initial burden of proving entitlement to summary judgment (Winegrad v. NY Univ. Med. Center, 64 NY2d 851, 487 NYS2d 316 (1985), once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 597 (1980); Freedman v. Chemical Const. Corp., 43 NY2d 260, 401 NYS2d 176 (1977); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 (1979).

Parties' Respective Burdens

As Plaintiff correctly noted:

[The] New York City Council policy [is that the] NYCHRL is to be liberally and independently construed with the aim of making it more protective than its federal . . . or state . . . counterparts. Hence, case law suggests that the other human rights laws should merely serve as a base for the [NYCHRL], not its ceiling.' . . . Nonetheless, as the NYCHRL and federal . . . [law] address the same type of discrimination, are textually similar, and employ the same standards of recovery, New York courts have attempted, and continue to attempt, to resolve federal, state, and city employment [*7]discrimination claims consistently with McDonnell Douglas Corp.[FN5] . . .

See Hanna v. New York Hotel Trades Council,NYS2d, 2007 WL 4294708 (Sup. Ct., NY Co., Stallman, J.).

At first blush, it would appear that Plaintiff has made a low threshold, prima facie showing of disability/perceived discrimination by virtue of Defendant's denying Plaintiff the Two City Positions and other alternative OFI City positions, and Defendant's concomitant failure to accommodate Krist's emotional and physical disabilities by allowing him to temporarily work from home and/or at a City office. If so, Defendant then offered non-discriminatory reasons for its actions.[FN6] The burden then shifted back to Krist to defeat OFI's summary judgment motion by demonstrating material issues of fact as to whether Defendant's reasons were a pretext for disability/perceived discrimination for his eventual termination.

Collateral Estoppel

In Schwartz v. Public Administrator of Bronx County, 24 NY2d 65, 71, 298 NYS2d 955, 960 (1969), the Court of Appeals succinctly abridged the two prerequisites of collateral estoppel (i.e., issue preclusion): "New York Law has now reached the point where there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling." It differs from res judicata (i.e., claim preclusion) in that it does not affect an issue which might have been, but, in fact, had not been, resolved in the first action. Rather, it affects an issue actually decided in the earlier action.

Nor is issue preclusion limited to successive lawsuits involving the same cause of action. "It has [also] been observed that since the consequences of a determination that a party is collaterally estopped from litigating a particular issue are great, strict requirements for application of the doctrine must be satisfied to insure that a party not be precluded from obtaining at least one full hearing on his or her claim . . . The question as to whether a party had a full and fair opportunity to litigate a prior [*8]determination involves a practical inquiry into the realities of litigation . . . Collateral estoppel effect will only be given to matters actually litigated and determined' in a prior action. Preclusive effect will not be given if the particular issue... was not actually litigated, squarely addressed and specifically decided ' . . ." (Emphasis added). Singleton Management, Inc. v. Compere, 243 AD2d 213, 217, 673 NYS2d 381, 384 (1st Dept., 1998). Moreover, "[c]ollateral estoppel . . . [even] precludes a party from relitigating in a subsequent action . . . an issue clearly raised in a prior action or proceeding and decided against that party . . . , whether or not the tribunals or causes of action are the same . . ." (bracketed matter added). Parker v. Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343, 349, 690 NYS2d 478, 482 (1999).

To undercut Defendant's collateral estoppel defense, Plaintiff relies on Jordan v. Bates Advertising Holdings, Inc., 292 AD2d 205, 738 NYS2d 348 (1st Dept., 2002), and assumes the purported "[d]issimilarities between age and disability laws. . ." as the basis for the Appellate Division holding that "[Kathryn Jordan] was not barred from asserting state law sex and disability claims even though her discrimination claims had been dismissed . . ." (bracketed matter added) (Plaintiff's Memorandum in Opposition to Summary Judgment Motion at p. 28). Plaintiff then argues that Judge Swain's declination "to exercise supplemental jurisdiction over [P]laintiff's disability claims . . . [permits] Plaintiff . . . to litigate the issue of whether OFI discriminated against him by failing to offer him a . . . [City] based position." (bracketed matter added). Id. This court disagrees.

In Jordan, supra , the Appellate Division noted "that the federal court made no analysis of the evidence of sex and disability discrimination inasmuch as these claims were dismissed on statute of limitation grounds . . ." (emphasis added). 292 AD2d at 207, 738 NYS2d at 350. However, when Judge Swain analyzed Plaintiff's factual evidence of age discrimination in Krist's prior federal action and found same legally insufficient to sustain a claim of age discrimination under federal law, state law and more liberal NYCHRL, the Federal Court had, in effect, analyzed the same factual evidence that Plaintiff relies on to prosecute this disability/perceived discrimination claim with respect to not being offered desired or other OFI City positions. Stated differently, the Fed. Decision's dismissal of Krist's disability claims brought under the state law and NYCHRL, without prejudice, did not vitiate the Federal Court's finding that Krist did not have any evidence of a genuine issue of material fact to establish any pretext and/or defeat OFI's showing of nondiscriminatory bases for: (1) not offering Plaintiff either of the Two City Positions because they hired candidates indisputably better qualified than he;[FN7] (2) not offering Krist other markedly lower-salaried City [*9]positions Plaintiff never sought which were otherwise offered to qualified NYC-MBT members; and (3) eventually terminating Plaintiff in July 2002.

Accordingly, the issue of Plaintiff's denial of either Two City Positions sought and perceived unfavorable treatment in his quest for alternative OFI positions in NYC must "be given conclusive effect under [the] collateral estoppel doctrine . . . [because it had] been material to the . . . [federal] action and essential to [the Fed.] [D]ecision

rendered. . ." (bracketed matter added). Peterkin v. Episcopal Social Services of New York, Inc., 24 AD3d 306, 308, 808 NYS2d 31, 33 (1st Dept., 2005). Because

"[t]his . . . [issue] . . . was actually litigated, squarely addressed and specifically

decided, . . . [it must] equally defeat[ ] [the alternative employment aspect of] [P]laintiff's [disability/perceived] discrimination claim. . ." (bracketed matter added). 24 AD3d at 308, 808 NYS2d at 33.

Reasonable Accommodation

Another aspect of Krist's disability claim is grounded on OFI's alleged failure to reasonably accommodate his disability by offering Krist temporary work-from-home and City office accommodations (the latter to address Krist's emotional disability and facilitate his adjustment to an office setting surrounded by a NYC safety net of family and friends).

Pimentel v. Citibank, N.A., 29 AD3d 141, 145, 811 NYS2d 381, 385 (1st Dept., 2006), cites to the relevant provisions of the state law and NYCHRL which address the nature and scope of reasonably accommodating a disabled employee:

It is well established that the statutory duty of a New York employer under New York's Human Rights Law is to "provide reasonable accommodations to the known disabilities of an employee . . . in connection with a job or occupation sought or held." (Executive Law § 296[3][a]). Further, "reasonable accommodation" is defined as actions taken by employer which "permit an employee . . . with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held . . . provided, however that such actions do not impose an undue hardship on the business." (Executive Law §292 [21-e]). New York City's Human Rights Law requires that an employer "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job." (Administrative Code § 8-107 [15] [a]).

Upon reviewing this developed record and controlling federal case law, this court concludes that Krist's request to complete the three month trial period as a member of the Rochester-MBT at home and/or at a NYC office site was unreasonable as a matter of law. [*10]

Preliminarily, Plaintiff does not challenge OFI's business decision to restructure and merge its NYC and Rochester municipal bond departments and locate the newly merged department in Rochester, ultimately offering every NYC-MBT member the opportunity to join the Rochester-MBT on a trial basis. Against this nondiscriminatory backdrop, Plaintiff gives his conclusory view about the functions of a municipal bond analyst in NYC and Rochester being identical except for a new supervisor and changed location of the newly merged municipal bond department. And Plaintiff does so without proffering any evidence that: the Rochester Style of municipal bond trading inter alia did not "require constant in-person interaction between portfolio managers and credit analysts . . . "[FN8] at a central location as an essential requisite to perform his job; his research of the types of municipal bonds the Rochester MBT dealt with did not require travel to prescribed locations to gather in-person information or necessary "facts on the ground" for optimal analysis, marketing and trading of this financial product;[FN9] and/or he could actually fulfill his essential functions as a Rochester MBT member at a City Office site isolated from his colleagues without receiving hands-on training and supervision to master the Rochester Style and without fulfilling the required travel outside NYC expected of Senior Municipal Bond Analysts on the Rochester-MBT. In sum, Plaintiff has conclusorily asserted he can fulfill the essential functions of his job at a home/City Office site without any factual evidentiary support. McKenzie v. Meridian Capital Group, LLC, 35 AD3d 676, 677, 829 NYS2d 129, 130 (2nd Dept., 2006)(failure to allege any facts to sustain a disability discrimination claim warranted CPLR §3211[a][7] dismissal).

While OFI did not accede to Krist's unreasonable work-from-home/City Office site request, nonetheless, Defendant generously agreed in writing (Exhibit Q to Weiss Aff. in Support of Summary Judgment Motion) to delay the start date of Krist's trial period with the Rochester-MBT until after Plaintiff determined he was physically and emotionally well enough to return from an indefinite disability leave of absence.

After exhaustive mutual discovery previously undertaken in the prior federal action, Plaintiff, in a terse affidavit in opposition to the summary judgment motion, now questions that accommodation as having been equivocal because of Adamshick's purported lack of final authority (Krist Opp. Aff. at ¶ 9). Yet, this belated assertion is belied by his own deposition testimony and that of Webman, both Adamshick's and Fielding's superior, who "green-lighted" the leave of absence. Further, if Plaintiff truly [*11]had concerns about this indefinite leave option, he could simply have gone up the chain of command and requested written verification. Plaintiff's apparent nonacceptance of an indefinite leave seemingly predicated on his sense of integrity, really rests on his unwillingness to accept a Rochester position under any circumstances. Here, too, Plaintiff has failed to raise any material issue of fact which challenges the reasonableness of Defendant's indefinite leave offer which would have enabled Krist to accept the Rochester job only after he believed he was physically and emotionally ready. Based upon the foregoing, it is hereby

ORDERED that Defendant's motion for summary judgment is granted dismissing Plaintiff's complaint in its entirety with prejudice and without assessing fees and costs. The Clerk shall enter a judgment accordingly.

This constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties.

DATED: New York, New York

December 20, 2007

_________________________________

HON. MARTIN SHULMAN, J.S.C. Footnotes

Footnote 1: NYCHRL§ 8-107[1](a) states, in relevant part:

Unlawful discriminatory practices. 1. Employment. It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status 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.

Footnote 2: A colostomy is a surgical operation that creates an artificial anus through an opening made in the abdomen from the colon. That opening is called a stoma. Feces would pass though the stoma to an external pouch. In Krist's case, the colostomy was temporary to foster healing and was reversed at a later date.

Footnote 3: Evidently, the NY-MBT style involved the MBT members trading recognizable, highly liquid municipal securities, whereas the Rochester Style inter alia involved trading lesser known municipal securities. The latter further required the MBT members to report to a centrally located office in Rochester for regular in-person MBT interaction and frequently travel to construction projects and attend conferences throughout the United States.

Footnote 4: NYCHRL § 8-107 [16] (a) and (b)(1) define "disability" as follows:

16. (a) The term "disability" means any physical, medical, mental orpsychological impairment, or a history or record of such impairment. (b) The term "physical, medical, mental, or psychological impairment" means: (1) an impairment of any system of the body, including, but not limited to: the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system.

Footnote 5: See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), which invokes a three-step burden shifting analysis.

Footnote 6: In defending a claimed failure to provide a reasonable accommodation to a disabled employee, an employer can rely on NYCHRL § 8-107 [15](b) which states

Affirmative defense in disability cases. In any case where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job or enjoy the right or rights in question.

Footnote 7: Krist makes much of the fact that because he was medically required to interview dressed-down wearing loose-fitting cotton pants typically worn by hospital patients, this was held against him. It cannot be overlooked that these interviews occurred at least two months after his second surgery to reverse the colostomy and no physician proscribed Plaintiff from wearing a suit for brief periods of time. In short, this is a "red herring." The affidavits of the OFI hiring managers corroborated by resumes of the more qualified candidates and published detailed job descriptions of the Two City Positions for which Plaintiff was clearly not qualified went essentially unrefuted (see Exhibits I and J to Asen Aff.).

Footnote 8: See Adamshick's June 26, 2002 e-mail to Krist as Exhibit Q to Weiss Aff. in Support of Summary Judgment Motion.

Footnote 9: Contrarily, when asked at his deposition if there was a difference between the Rochester Style and NYC-MBT style, Krist acknowledged that "the funds [i.e., municipal bonds] had a significantly different risk profile. They [Rochester-MBT members] bought different kinds of securities. They had different interest rate management strategies than we had. The also had different goals for operating funds." (Bracketed matter added). (Krist Deposition Tr. at p. 197, line 25 - p. 198, lines 1-11 as Exhibit 8 to Clark Opp. Aff.).