Benson v. Westchester Med. Ctr.
| Docket Number | 20-CV-05076 (PMH) |
| Decision Date | 12 July 2022 |
| Parties | ROLAND BENSON, Plaintiff, v. WESTCHESTER MEDICAL CENTER, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Roland Benson (“Plaintiff”) brings this action against (1) Westchester Medical Center (“WMC”); (2) Westchester Medical Center Health Network (“WMCHN”); and (3) Jill DelBello (“DelBello,” and collectively “Defendants”). (Doc. 23 “SAC”).[1] The Second Amended Complaint-the operative pleading, spanning 54 pages and more than 162 paragraphs-presses nine claims for relief under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C § 2601 et seq., Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq., New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq., and New York State common law against one or more Defendants, alleging specifically: (1) FMLA interference; (2) FMLA retaliation; (3) ADA discrimination; (4) ADA retaliation; (5) NYSHRL discrimination; (6) Rehabilitation Act discrimination; (7) Rehabilitation Act retaliation; (8) defamation; and (9) prima facie tort.[2] (See SAC ¶¶ 111-62).
Defendants served a motion to dismiss this action in its entirety under Federal Rule of Civil Procedure 12(b)(6) on July 16, 2021. (Doc. 36; Doc. 37; Doc. 38, “Def. Br.”). Plaintiff served his opposition papers on August 17, 2021 (Doc. 43, “Opp. Br.”), and the matter was briefed fully with the service of Defendants' reply memorandum of law in further support of their motion on August 30, 2021 (Doc. 41, “Reply Br.”).
For the reasons set forth below, Defendants' motion is GRANTED IN PART.
Plaintiff suffers from “chronic asthma and allergies with acute exacerbations, which substantially limits his breathing daily ....” (SAC ¶ 5). He has been treated for this condition for over three decades. (Id. ¶ 20). The “daily breathing limitations . . . include[,] but [are] not limited to, tightness in the chest, wheezing, coughing, difficulty breathing and if the exacerbation is severe, difficulty talking and walking.” (Id.). Such “flare-ups” have hospitalized Plaintiff on five occasions and “have intermittently made him unable to work.” (Id.).
Plaintiff's tenure at WMC lasted “for approximately 1.5 years ....” (Id. ¶ 1).
Plaintiff began his nursing career at WMC, a hospital within the WMCHN, in October 2018. (Id. ¶¶ 19, 23). Plaintiff was first assigned to the operating room for orientation and a course of training which could last up to ten months (i.e., August 2019). (Id. ¶ 23). Approximately six months into that assignment, in April 2019, Plaintiff requested a meeting with Vice President of[3] Perioperative Services Barbara Teich (“Teich”). (Id. ¶ 25). Plaintiff sought that meeting because, notwithstanding his success in his initial assignment, he was concerned about “inconsistencies in training” and “being put in procedural situations for which he had not yet been trained.” (Id. ¶¶ 24-25). Plaintiff met with Teich and, during that meeting, the two discussed an expected job opening for a nurse in WMC's Endoscopy Unit. (Id.). The anticipated position opened up, Plaintiff applied, and he was hired. (Id. ¶ 28).
Plaintiff began his Endoscopy Unit assignment, under DelBello's management, on June 11, 2019. (Id. ¶ 29). During Plaintiff's orientation (presumably that day), he and Diane Noone (“Noone”) asked that DelBello: (1) procure a larger lead apron for Plaintiff, as those available were too small; and (2) issue Plaintiff a dosimeter (an instrument used to measure radiation). (Id. ¶ 29). Neither was provided that day.
Plaintiff missed work intermittently over the summer. Approximately one month after orientation, on July 12, 2019, he called out sick due to an asthma attack. (Id. ¶ 30). On August 6, 2019, he missed work for a dental appointment.[4] (Id. ¶ 31). Roughly two weeks after that, on August 19, 2019, Plaintiff called out again because of an asthma attack. (Id. ¶ 30). Approximately two weeks after that absence, on August 30, 2019, Plaintiff had his Orientation Performance and Goals review meeting with Director of Perioperative Services Pam Germinaro (“Germinaro”), DelBello, and Noone. (Id. ¶ 32).
Notwithstanding Plaintiff's absences, the August 30, 2019 review was generally positive. (Id.). Germinaro advised, however, that “[s]ick calls and time attendance needs to be improved/decreased.” (Id.). Plaintiff asked that his July 12, 2019 and August 19, 2019 absences not be held “against him ....” (Id. ¶ 33). He received no response to that request. (Id.).
The two months after the August 30, 2019 review were uneventful. Plaintiff had no attacks that impacted his ability to perform his job and, at some point in September 2019, he received an evaluation giving him “all positive marks” across some twenty pages of criteria. (Id. ¶¶ 34-35).
Plaintiff had an asthma attack about halfway through the workday on November 1, 2019. (Id. ¶ 36). Plaintiff notified DelBello who, although “appear[ing] to be annoyed and roll[ing] her eyes,” told him, “[i]f you need to leave[,] then leave.” (Id.). Plaintiff left work and saw his physician who, inter alia, diagnosed him with bronchitis and prescribed antibiotics. (Id.). Although Plaintiff submitted a doctor's note after the fact, “the hours taken [on November 1, 2019] . . . were recorded as . . . unexcused ....” (Id. (internal quotation marks omitted)).
Asthma attacks kept Plaintiff out of work again on December 3, 2019 and December 6, 2019.[5] (Id. ¶ 42). On December 6, 2019, DelBello told Plaintiff that he, she, and Germinaro would meet to discuss his ongoing attendance issues. (Id. ¶ 43). One week later, on December 13, 2019, Plaintiff had another asthma attack at work, reported it to DelBello, and asked to leave. (Id. ¶ 44). DelBello responded, “Are you kidding me, you can't go home today.” (Id.). DelBello called Germinaro on the spot and told Plaintiff that he could either go to: (1) the emergency room; or (2) the Integrated Disability Office (“IDO”), a subset of WMC's Human Resources Department. (Id.). Plaintiff opted for the latter and, at the IDO, spoke with an unidentified person who gave Plaintiff FMLA paperwork and advised “that sick time needed for his asthma should not be held against him.” (Id. ¶ 45). Plaintiff, after that meeting, left to see his doctor. (Id.). DelBello, at some point, deleted Plaintiff's time entry for December 13, 2019. (Id. ¶ 46).
Plaintiff's physician submitted the FMLA paperwork for intermittent leave between December 16, 2019 and December 15, 2020 to the IDO on December 16, 2019 and, that same day, Plaintiff brought the original paperwork to DelBello. (Id. ¶¶ 47-48, 54). The FMLA submission included a notation from Plaintiff's doctor that, in addition to asthma, Plaintiff “suffers from neck and mid-back pain requiring chiropractic treatment and manipulation once per month ....” (Id. ¶ 50). Plaintiff, at DelBello's direction, took the FMLA paperwork to Germinaro. (Id. ¶¶ 48, 50). During that interaction with Plaintiff, Germinaro explained that she had contacted WMC's legal department and the IDO to figure out how to “move forward.” (Id. ¶ 51(b)). Germinaro expressed confusion about Plaintiff's FMLA request, observing, “[I]t's kind of hard if you're saying you are cleared, but then you're saying you're not really cleared because you need time off for [your asthma] sometimes.” (Id. ¶ 51(c)). Germinaro mused further, “I have asthma, I've never missed a day at work from asthma and we don't have light duty in this facility.” (Id. ¶ 51(e)).
The FMLA request was approved on December 20, 2019. (Id. ¶ 54; see also id., Ex. C).
From December 16, 2019-the day Plaintiff submitted his FMLA request-through December 23, 2019, DelBello increased Plaintiff's assigned Endoscopic Retrograde Cholangiopancreatography (“ERCP”) procedures from approximately one per week to one or two daily. (Id. ¶ 52). Plaintiff insists that during this time, notwithstanding his exposure to radiation, DelBello refused to provide him with a larger lead apron or a dosimeter. (Id.).
While Plaintiff undertook his increased workload, on December 18, 2019, Germinaro, DelBello, and a union representative held a meeting. (Id. ¶ 56). Plaintiff, following that meeting, was disciplined and given a written reprimand for three unexcused absences. (Id.).[6]
Two days after that, on December 20, 2019, Plaintiff overheard DelBello tell a new surgeon that the latter would be measured for a lead apron. (Id. ¶ 57). Plaintiff interrupted the conversation to ask if he could be measured as well, but DelBello refused, stating, “I already told you . . . that if you need a custom fit apron you need to buy it yourself.” (Id.). Later that day, Plaintiff consulted with a union representative who told him to draft an e-mail to DelBello documenting her behavior and “create a paper trail ....” (Id. ¶ 58). Plaintiff drafted the message, reviewed it with his representative on December 22, 2019, and sent it to DelBello on December 23, 2019. (Id. ¶¶ 5960). DelBello responded, in pertinent part, as follows:
Since this is the FIRST time you mentioned to me the lead doesn't fit you, (you've been here 6 months, it's a holiday week and the end of the year) it will take me a little time to obtain additional PPE that will fit your needs. I have told you in the past your radiation badge is up in the Main OR, go upstairs and get it ....
(Id. ¶ 60). DelBello wrote further, ...
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