Cohn v. Keyspan Corp.

• Decision Date: 13 May 2010
• Docket Number: No. 09 CV 2477(SJF)(AKT).,09 CV 2477(SJF)(AKT).
• Citation: 713 F.Supp.2d 143
• Parties: Tracy Lee COHN, Plaintiff,v.KEYSPAN CORPORATION, Long Island Power Authority, National Grid Corporate Services, LLC, Donato Barrucco, Christopher Bishop, Carol Buford, Timothy Gewert, Anna L'Abbate, Marilee Robertson, and Jane Does and John Does, the latter being those Defendants unknown to Plaintiff, all sued in their individual and professional capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

713 F.Supp.2d 143

Tracy Lee COHN, Plaintiff,v.KEYSPAN CORPORATION, Long Island Power Authority, National Grid Corporate Services, LLC, Donato Barrucco, Christopher Bishop, Carol Buford, Timothy Gewert, Anna L'Abbate, Marilee Robertson, and Jane Does and John Does, the latter being those Defendants unknown to Plaintiff, all sued in their individual and professional capacities, Defendants.

No. 09 CV 2477(SJF)(AKT).

United States District Court E.D. New York.

May 13, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Linda Cronin, Cronin & Byczek LLP, New Hyde Park, NY, Rocco G. Avallone, Cronin & Byczek, LLP, Lake Success, NY, for Plaintiff.

Elizabeth Iovino, Cullen and Dykman LLP, Garden City, NY, James G. Ryan, Cullen and Dykman, LLP, Garden City, NY, for Defendants.

OPINION AND ORDER

FEUERSTEIN, District Judge.

On June 10, 2009, plaintiff Tracy Lee Cohn (“plaintiff”) filed this action against KeySpan Corporation (“KeySpan” or “KeySpan Corporation”), Long Island Power Authority (“LIPA”), National Grid Corporate Services, LLC (“National Grid”), Donato Barrucco (“Barrucco”), Christopher Bishop (“Bishop”), Carol Buford (“Buford”), Timothy Gewert (“Gewert”), Anna L'Abbate (“L'Abbate”), Marilee Robertson (“Robertson”), and “Jane Does and John Does” (“the Doe defendants”) (collectively, “defendants”), alleging inter alia, employment discrimination based on disability, a hostile work environment and retaliation in violation of the Americans with Disabilities Act, (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973 (“the Rehabilitation Act”), 29 U.S.C. § 792 et seg., and the New York State Executive Law § 296 (“NYSHRL”). Defendants now move pursuant to Rule 21 of the Federal Rules of Civil Procedure to dismiss the complain, as against KeySpan and LIPA; and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”) to dismiss the complain, in its entirety. For the reasons stated herein, defendants' motion is granted in part and denied in part.

I. BackgroundA. Factual Background ¹

1. The Parties

Since April 1998, plaintiff has been employed by KeySpan, LIPA and/or National Grid (collectively, “the Utility defendants”). (Complaint [Compl.], ¶ 27). Since July 16, 1998, plaintiff has been employed by the Utility defendants as a customer service representative. (Compl., ¶ 17). At all relevant times, Barrucco, Bishop, Buford, Gewert, L'Abbate and Robertson (collectively, “the individual defendants”) were employed by the Utility defendants in a supervisory capacity and were plaintiff's supervisors in the customer relations department. (Compl., ¶¶ 19-25).

Plaintiff alleges that she is disabled as a result of a spinal injury, i.e. narrowing of discs at L4 and L5 and degenerative discs, she sustained on April 15, 1999 when she slipped and fell at a customer's home while she was working as a meter reader for the Utility defendants (“the slip and fall accident”). (Compl., ¶¶ 13, 28-30). At plaintiff's request, she was placed on light duty following the slip and fall accident. (Compl., ¶ 28).

Plaintiff alleges that although she obtained a prescription for the use of a lumbar supporting chair at work on January 5, 2001, the supervisor to whom she submitted her request for the chair denied her request. (Compl., ¶¶ 31-32).

On January 31, 2001, plaintiff fell from her office chair (“the chair accident”), as a result of which she sustained a “serious injury.” (Compl., ¶ 33). Following the chair accident, plaintiff remained out of work until March 12, 2001, at which time she returned to work for half days for three (3) weeks. (Compl., ¶ 34). Plaintiff returned to full duty at work on April 9, 2001. (Compl., ¶ 35).

In or about June 2005, plaintiff left work to go to the emergency room after suffering “sharp pains in her back region.” (Compl., ¶ 36). Although plaintiff returned to work the following day, she again left work via an ambulance, which transported her back to the emergency room, as a result of “severe pain in her back.” (Compl., ¶ 37). Plaintiff was diagnosed with “three damaged discs,” for which she underwent pasterolumbar interbody fusion surgery (“the surgery”) on July 19, 2005, following which she was hospitalized for two (2) days and bedridden for twenty-one (21) days. (Compl., ¶¶ 38-39, 44). Plaintiff alleges that the surgery limited her ability to sit for long periods of time and to perform tasks requiring bending or lifting. (Compl., ¶ 40). However, plaintiff denies that her purported disability prevents her in any way from performing the essential duties of a customer service representative. (Compl., ¶ 42).

In or about September 2005, plaintiff “submitted the required medical documents in order to receive reasonable accommodations [at work] as a result of her surgery.” (Compl., ¶ 44). Upon her return to work in September 2005, plaintiff was given a reasonable accommodation, insofar as she was permitted to take seven (7) to ten (10) minute breaks four (4) times per day to stretch and manipulate her back and such time would be excluded from her “availability status” on her performance evaluation. (Compl., ¶¶ 46, 63).

Plaintiff alleges that soon after the surgery, at the direction of Robertson, she submitted a Family Medical Leave Act (“FMLA”) application to KeySpan. (Compl., ¶ 43). Plaintiff missed work from September 21, 2005 through October 20, 2005. (Compl., f 45). According to plaintiff, “[u]pon returning to work, [she] supplied [KeySpan] with a doctor's letter explaining her absence.” ( Id.).

Plaintiff further alleges that as a result of the surgery, she missed the following periods from work: from January 19, 2006 through January 26, 2006; from April 24, 2006 through April 26, 2006; and from June 6, 2006 through June 9, 2006. (Compl., ¶¶ 47-49). According to plaintiff, upon returning to work after each absence, she supplied KeySpan with a doctor's letter explaining her absence. (Compl., ¶¶ 47-49).

On or about August 2, 2006, Jane Sciacca, from KeySpan, advised plaintiff that her request for FMLA accommodations had been approved, (Compl., ¶ 50), “contingent upon [plaintiff] having met the requisite hours worked.” (Affidavit of James G. Ryan [Ryan Aff.], Ex. B; Declaration of Linda M. Cronin [Cronin Decl.], Ex. B).² In addition, Sciacca advised plaintiff that she was still required to provide medical documentation for each illness-related absence from work. (Ryan Aff., Ex. B; Cronin Deck, Ex. B).

During a meeting on August 24, 2006, attended by plaintiff, Robertson and a union representative Connie Fritzlo (“Fritzlo”), plaintiff was advised that her use of sick leave during the previous twelve (12) month period had been excessive, insofar as she was absent from work due to illness from September 21, 2005 through October 20, 2005, on December 2, 2005, from December 29, 2005 through December 30, 2005, from January 19, 2006 through January 26, 2006, from April 24, 2006 through April 26, 2006 and from June 6, 2006 through June 9, 2006, and a verbal reprimand was issued based upon her unavailability for work. (Ryan Aff., Ex. B; Cronin Decl., Ex. B). Plaintiff was also advised that her “[f]ailure to make an immediate and sustained improvement in [her] overall attendance profile [would] result in the continuance of progressive disciplinary action up to, and including, termination of employment” and was encouraged to utilize KeySpan's Health Services and/or Long Island Employee Assistance Program. (Ryan Aff., Ex. B; Cronin Deck, Ex. B).

On September 14, 2006, at approximately 9:23 a.m., when plaintiff was returning from her “normal backstretch walk,” she experienced “severe pain” in her back radiating down her leg. (Compl., ¶ 51). Since Barrucco, plaintiff's immediate supervisor that day, was unable to speak with plaintiff, plaintiff contacted another supervisor, Shirley Josephs (“Josephs”), and informed her that she “could no longer continue to work.” (Compl., ¶ 53). According to plaintiff, with Josephs's permission, she signed out of work at 10:10 a.m. and went directly home to bed. ( Id.). Plaintiff alleges that Barrucco called her at home at 1:30 p.m. that day and threatened to dock her salary for the day unless she immediately returned to work because he did not believe her claim of back pain. (Compl., ¶ 54). According to plaintiff, Barrucco also threatened to address the matter with plaintiff's union and KeySpan's management. (Compl., ¶ 55). Thereafter, plaintiff went to her doctor, who took x-rays revealing that her spine had not completely fused together causing her pain. (Compl., ¶ 56). The doctor gave plaintiff an orthopedic device to stimulate bone growth. ( Id.).

Upon returning to work on September 18, 2006, plaintiff provided Robertson with a doctor's note explaining her absence, to which Robertson responded: “We do not care about the note.” (Compl., ¶ 60). On that date, plaintiff also met with Barrucco, Bishop and Fritzlo, at which time she was advised that defendants would no longer accommodate her back stretches and walks into her schedule and that, although she would be permitted to continue taking such breaks, “her time away from her workstation * * * [would] now be factored into her unavailability status resulting in possible disciplinary action should she fail to reach her goals.” (Compl., ¶¶ 57-58, 62). According to plaintiff, at the meeting, Bishop also refused to acknowledge the medical report explaining her three (3) day absence from work. (Compl., ¶ 61). Plaintiff alleges that defendants' failure to accommodate her disability was taken in retaliation for her utilization of sick time on September 14, 2009 and that, as a result, she was unable to meet her “conformance level,” i.e., the expected standard of time during which a customer service representative spends on the telephone during his or her shift, for which she was disciplined and threatened with the termination of her employment. (Compl., ¶¶ 59, 64, 68).

Plaintiff alleges that in or...