Casseus v. Verizon N.Y. Inc.

• Decision Date: 09 July 2010
• Docket Number: No. 08-CV-4119 (JFB)(WDW).,08-CV-4119 (JFB)(WDW).
• Citation: 722 F.Supp.2d 326
• Parties: Paul CASSEUS, Plaintiff, v. VERIZON NEW YORK, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

722 F.Supp.2d 326

Paul CASSEUS, Plaintiff,

v.VERIZON NEW YORK, INC., Defendant.

No. 08-CV-4119 (JFB)(WDW).

United States District Court,E.D. New York.

July 9, 2010.

COPYRIGHT MATERIAL OMITTED.

Justin H. Reilly and Neil H. Greenberg, Law Offices of Neil H. Greenberg & Associates, Westbury, NY, for Plaintiff.

Martin Warren Aron of Edwards Angell Palmer & Dodge LLP, Madison, NJ, for Defendant.

memorandum and order

JOSEPH F. BIANCO, District Judge:

Plaintiff Paul Casseus (“Casseus” or “plaintiff”) brings this case against his former employer, Verizon New York, Inc. (“Verizon” or “defendant”) alleging violations of the Family and Medical Leave Act, the Americans with Disabilities Act, Title VII of the 1964 Civil Rights Act, and the New York State Human Rights Law. In November 2006, while employed with Verizon, Casseus requested leave to treat ulcers and wounds on his feet and ankles that resulted from sickle cell anemia. Verizon granted the leave but subsequently obtained video footage of Casseus engaging in activities during his leave that, it claims, were inconsistent with representations Casseus and his doctor made regarding Casseus's health status. After reviewing the video, Verizon told Casseus, who was still on leave, that if he did not return to work he would face “separation from payroll.” Ultimately, Verizon fired Casseus based on his alleged misrepresentation of health status.

Before the Court are the parties' cross-motions for summary judgment. As set forth below, the Court denies plaintiff's motion for summary judgment in its entirety and grants defendant's motion in part and denies it in part. First, plaintiff alleges that Verizon interfered with his rights under the Family and Medical Leave Act (“FMLA”) and retaliated against him for exercising those rights. Verizon argues that it is entitled to summary judgment on plaintiff's FMLA claims because it honestly believed that plaintiff had misrepresented his health status. After reviewing the record, and construing the evidence in the light most favorable to the party opposing summary judgment under the summary judgment standard, the Court concludes that there are genuine issues of fact that preclude summary judgment for either side on the FMLA claims.

Second, plaintiff alleges that Verizon discriminated against him on the basis of race in violation of Title VII of 1964 Civil Rights Act and the New York State Human Rights Law (“NYSHRL”). However, no reasonable jury would find that plaintiff has established even a prima facie case of racial discrimination. To the extent that plaintiff makes new allegations in a memorandum of law on the pending motions regarding racial discrimination, the Court rejects those allegations as procedurally and substantively defective. Accordingly, the Court grants defendant summary judgment on the race discrimination claims.

Third, plaintiff brings a claim for disability discrimination under the Americans with Disabilities Act and the NYSHRL. Plaintiff cannot establish a prima facie case of disability discrimination under the ADA because, even accepting his medical evidence as true and construing such evidence in the light most favorable to him, he cannot establish that the episodic manifestations of his sickle cell anemia substantially limit him in any major life activity within the meaning of the ADA under the particular circumstances of this case. Thus, the Court grants defendant summary judgment on the ADA claim and denies plaintiff summary judgment on that claim. However, the NYSHRL's definition of disability is broader than the ADA's, and a reasonable jury could find that plaintiff's condition comes with that definition. Additionally, there are triable issues of fact on the remaining elements of plaintiff's NYSHRL disability discrimination claim, and, therefore, the Court denies the cross-motions for summary judgment on this claim.

I. Background

The following facts are taken from the parties' depositions, declarations, exhibits, and respective Local Rule 56.1 statements of facts. ¹

A. Casseus's Employment

Casseus worked for Verizon as a customer service representative (“CSR”) from January 2000 until June 2007. (Def.'s 56.1 ¶¶ 1, 37.) CSRs sit at a work station and, while wearing a headset, answer calls from customers. ( Id. ¶ 2.) Casseus concedes that his job was primarily sedentary but also claims that he had to walk away from his desk and travel up or down stairs so that he could attend meetings and training. ( See id.; Pl.'s Opp. 56.1 ¶ 2.) At all relevant times, Casseus worked in Verizon's Wantagh, New York facility. (Def.'s 56.1 ¶ 1.)

B. Casseus's Sickle Cell Anemia

For most of his life, Casseus has suffered from sickle cell anemia. One symptom of Casseus's sickle cell anemia is that Casseus periodically experiences “vascular crises” in which ulcers and wounds develop on his lower extremities. When these ulcers and wounds develop, they drain and emit a foul odor. Casseus and his doctors treat the wounds through “serial debridement” and “advanced wound therapy.” ( See Pl.'s 56.1 ¶ 7-10.) ² Between 2000 and 2006, Casseus had two such vascular crises. (Rainsford Decl. ¶ 19.)

C. Casseus Requests Leave and Verizon Begins Surveillance

On November 27, 2006, Casseus told Eileen Capriotti, an Absence Administrator at the Wantagh facility, that he had to be absent from work because he was having trouble with his foot and ankle. (Def.'s 56.1 ¶ 4.) Almost immediately, Capriotti notified John Scuteri, the supervisor of the Wantagh facility, of Casseus's leave request and suggested that Verizon begin surveillance on Casseus. According to Capriotti, she requested surveillance because Casseus had taken leave during the same time of year in 2002, four years prior, and thus she suspected that Casseus could be fraudulently requesting leave. (Def.'s 56.1 ¶ 10; Pl.'s Opp. 56.1 ¶ 10.) Surveillance began on November 30, 2006. ( See Brener Decl. Ex. N.)

Under Verizon policy, Casseus was required to submit to Verizon an “FMLA Certification Form.” (Def.'s 56.1 ¶ 5.) The form is completed partially by the employee and partially by the employee's treating physician. ( See Brener Decl. Ex. H.) Casseus and his treating physician, Dr. Alan Cantor, submitted an FMLA Certification Form on or about December 4, 2006. ( See id.) The form stated that Casseus was suffering from “chronic and acute lower extremity-ankle-foot ulcerations wound infections due to sickle cell disease.” ( Id.) The form also indicates that Casseus's condition made him unable to perform at least one of the essential functions of his job and “closed shoe gear [was] not tolerated due [to] pressure on existing ulcerations [of] L and R ankles. Needs rest.” ( Id.) Furthermore, the form states that Casseus would be absent until approximately February 1, 2007. Both Casseus and Cantor signed the form. ( Id.) Based on this submission, Verizon granted Casseus FMLA leave for the period between November 27, 2006 and February 1, 2007. (Def.'s 56.1 ¶ 7.)

Sometime in December, Verizon officially approved Casseus for leave under the Family and Medical Leave Act. When it approved Verizon for FMLA leave, Verizon's FMLA department had information in its records that Casseus suffered from sickle cell anemia and ankle ulcers. ( See Pl.'s 56.1 ¶ 11.) Verizon contends, however, that neither Capriotti, Scuteri, nor Joann Henke, a Verizon director and the official who, Verizon asserts, ultimately fired Casseus, were aware that Casseus had sickle cell anemia. (Def.'s Opp. 56.1 ¶ 12.) Casseus's leave was to run until February 1, 2007. (Pl's 56.1 ¶ 14.)

D. Doctor's Certification

Verizon contracts with MetLife to administer its employees' medical and disability leaves. (Def.'s 56.1 ¶ 3.) On December 11, 2006, Casseus's doctor, Dr. Cantor, faxed MetLife a form called the “Attending Physician[']s Statement.” (Brener Decl. Ex. J.) The form indicates that Casseus was able to sit continuously and was able to stand and walk for one hour at a time. However, the form also indicates that Casseus was unable to “[t]wist/bend/stoop” or to “[o]perate a motor vehicle” and that, in the doctor's opinion, Casseus was “totally disabled from performing any job, including but not limited to his/her current job.” (Def.'s Ex. J.)

Casseus did not sign this document, and the parties dispute whether Casseus ever saw it or knew about its contents. (Def.'s 56.1 ¶ 9; Pl.'s Opp. 56.1 ¶ 9.)

E. Capriotti Calls and Visits with Plaintiff

Verizon contacts employees who are out on leave. (Pl.'s 56.1 ¶ 22; Def.'s Opp. 56.1 ¶ 22.) During Casseus's leave, Verizon officials, including Capriotti, called plaintiff on several occasions and made an unannounced visit to Casseus's home on December 18, 2006. (Pl.'s 56.1 ¶¶ 26-28; Def.'s Opp. 56.1 ¶ 27.) Verizon asserts that, during the phone calls with plaintiff, Verizon officials discussed with Casseus the possibility of him coming back to work with “restrictions” and “accommodations.” ³ Plaintiff indicated he needed to speak to his doctor. ( See Def.'s 56.1 ¶ 15; Pl.'s Opp. 56.1 ¶ 15; Brener Decl. Ex. E.)

F. Video Surveillance of Plaintiff

As noted above, Verizon had attempted to conduct surveillance on Casseus beginning November 30. The surveillance team did not observe Casseus that day. Nor did it observe Casseus during approximately nine hours of surveillance of his home on December 12. ( See Brener Decl. Ex. N.)

On December 19, 2006, however, the surveillance team observed Casseus standing and walking in the parking lot in front of his home for approximately 25 minutes. Casseus went back inside for a time and was then observed driving himself to two different banks over an approximately 45-minute period. At times, Casseus walked with a limp and sometimes carried a cane. ( See id.) The surveillance team videotaped Casseus's activities. ( See id. Ex. O.)

The next day, the surveillance team observed Casseus walk out of his home using a cane. He got into a car with an...