Goldman v. Sol Goldman Invs.

• Decision Date: 27 September 2022
• Docket Number: 20-CV-06727 (MKV)(SN)
• Parties: JEFFREY M. GOLDMAN, Plaintiff, v. SOL GOLDMAN INVESTMENTS LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

JEFFREY M. GOLDMAN, Plaintiff, v. SOL GOLDMAN INVESTMENTS LLC, et al., Defendants.

No. 20-CV-06727 (MKV)(SN)

United States District Court, S.D. New York

September 27, 2022

TO THE HONORABLE MARY KAY VYSKOCIL, JUDGE.

REPORT AND RECOMMENDATION

SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.

Jeffrey M. Goldman sues Sol Goldman Investments LLC (“SGI”), Solil Management LLC (“Solil”), and Jane H. Goldman, alleging violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law (“NYSHRL”), New York Executive Law §§ 290 et seq., and the New York City Human Rights Law (“NYCHRL”), New York City Administrative Code §§ 8-101 et seq. ECF No. 18, Amended Complaint. Plaintiff moves for partial summary judgment for liability on his claim for disability discrimination under the NYCHRL. ECF No. 95. Defendant SGI cross-moves for summary judgment. ECF No. 104. I recommend that the Court GRANT Plaintiff's motion for partial summary judgment against all Defendants and DENY Defendant SGI's cross-motion for summary judgment.

BACKGROUND

I. Factual Background

A. Facts Relevant to SGI's Status as an Employer

Plaintiff worked as an in-house attorney for Defendants beginning in June 2000. ECF No. 105, Ex. 1 Plaintiff's Rule 56.1 Statement (“Pl. 56.1”) ¶ 1, 9.^[1] In this role, Plaintiff litigated claims related to commercial and residential real estate properties throughout NYC, including nonpayment of rent, use and occupancy claims, and holdover proceedings in rent-regulated and free market properties in housing court. Id. at ¶¶ 2, 6. He also defended against suits brought by the City of New York or individual tenants in connection with conditions in the properties. Id. at ¶ 7. The properties were owned by Defendant SGI and structured as individual limited liability companies, and SGI asserts financial control over them. Id. at ¶¶ 15 18; see also ECF No. 98, Ex. 14. Plaintiff did not represent the properties under a formal retainer agreement. Pl. 56.1 ¶ 16.

The parties contest whether Plaintiff was an employee of both Solil and SGI. Id. at ¶ 2, 5-7. Defendants contend that SGI had no employees during the period in question, a claim Plaintiff dismisses as a legal conclusion rather than an uncontested fact. ECF No. 110, Defendant's Rule 56.1 Statement (“Def. 56.1”) ¶ 50. Solil generates no revenue, but has employees, including - formerly - Plaintiff. Pl. 56.1 ¶ 19-20. During his employment, Plaintiff received annual W-2 forms that identify Solil as his employer, and Plaintiff reported Solil as his employer on his state and federal tax returns. Def. 56.1 ¶ 52-53, 55-62. When Plaintiff filed for unemployment insurance, the New York Department of Labor sent relevant paperwork, including a “Notice of Potential Charges” and a “Notice of Protest” to Solil. Id. at ¶ 66.

SGI and Solil operate out of the same office at 1185 Sixth Avenue 10^th Floor, New York, New York 10036-2604. Pl. 56.1 ¶ 13.

Defendant Jane Goldman is a principal of Solil and, as Defendants admit, the ultimate decision maker. Id. at ¶ 10-11. She has the power to hire, fire, set the rate of pay, and set the terms and conditions of employment for employees of Solil. Id. at ¶ 26-30. Goldman is also a manager of SGI and is authorized to make management decisions on the company's behalf. Id. at ¶ 12. For example, Goldman has sole authority to settle any case that involves SGI's properties. Id. at ¶ 22. Judith Brener was the general counsel for SGI, Solil, and “various holding companies and other entities.” Id. at ¶ 24. Plaintiff was supervised by both Goldman and Brener. Id. at ¶ 34.

B. Facts relevant to Plaintiff's Disability Discrimination Claim

Beginning on March 17, 2020, Defendants instructed Plaintiff and other legal staff to work from home because of the COVID-19 pandemic. Pl. 56.1 ¶ 33. Plaintiff worked from his home in New Jersey from that date until June 24, 2020, and represented Defendants in virtual hearings before New York state courts. Id. at ¶¶ 35, 44. As of June 24, there were no in-person court appearances scheduled for cases involving Defendants' properties. Id. at ¶ 45. The parties dispute whether Plaintiff's work during this period was satisfactory. Def. 56.1 ¶¶ 4-5.

In June of 2020, Plaintiff was 69 years old. Pl. 56.1 ¶ 47. He suffers from high blood pressure and coronary artery disease, has a high body mass index, and is considered overweight. Id. at ¶¶ 48-52. As a result of these underlying medical conditions, Plaintiff is at a higher risk for severe COVID-19. Id. at ¶¶ 53-55. Defendants do not dispute that Plaintiff suffers from underlying conditions but do dispute that they were aware of his claimed disability in June 2020. Id. They also contend, based on the deposition testimony of Plaintiff's doctor, Dr. Doron Katz, that Plaintiff's primary underlying condition was age, compounded by weight and hypertension, rather than coronary artery disease. Def. 56.1 ¶ 43; see also ECF No. 105, Ex. D Deposition Testimony of Dr. Doron Katz (“Katz Dep”) 8:12-10:24.^[2]

Defendants ordered all employees to return to in-person work at their Manhattan offices on June 22, 2020. Pl. 56.1 ¶ 61. On May 28, Plaintiff emailed Dr. Katz:

My employer is going to gradually open probably in @ 2 weeks. I anticipate that I will be expected to return at some point. Sheryl and I have been strongly quarantined. I have rarely left the house. I would greatly appreciate it if you can provide me with a very strong emphatic letter that states that I have been your patient for many years and it [i]s your strong medical opinion that I cannot return to work in an office in New York City or the courts in New York City due to a number of underlying health issues. Either they will terminate my employment and I will file for unemployment or I will retire depending on discussions with them.

Def 56.1 ¶ 6. Dr. Katz subsequently provided Plaintiff with the following note:

Jeffrey Goldman has been my patient for 15 years. It is my medical opinion that he has several underlying conditions that would put him at a higher risk to work in an office building or the courts in New York City. He is fully able to continue working from home as he has been during the ongoing COVID19 Pandemic.

ECF No. 98, Ex. 6.

On June 17, 2020, Plaintiff emailed Brener, his supervisor, and Concetta Ferrari, the Defendants' office manager:

As you know, I have been working from home since March 17, 2020, and I appreciate having been able to do that. I have a number of underlying health issues. I do not go to stores. I do not go to synagogues. I do not allow either of my daughters to come to my home. I have not seen my daughter, Jordana, in 6 months. She knows that she can't come here, and she is flying from Los Angeles to Baltimore, without stopping here. I have consulted with my physician. He has provided me with a letter. I will not be able to return to court, and I will not be able to return to the office. I can, however, continue working from home.

ECF No. 98, Ex. 5. Brener responded: “Jeff: You are our court attorney!!!!! Help!” Id. Later the same day, Brener wrote again asking Plaintiff to submit the doctor's note, which he provided. ECF No. 98, Ex. 15.

On June 24, 2020, Brener gave Defendant Goldman a copy of Plaintiff's email. Pl. 56.1 ¶ 75. Goldman then called Plaintiff on the phone. Id. at ¶ 76. The parties dispute whether Plaintiff resigned or was terminated. Plaintiff testified that Goldman told him to retire. ECF No. 98, Ex. 1 Jeffrey Goldman Deposition (“Pl. Goldman Dep”) 132:1-15. He refused, saying she'd have to fire him, and he would collect unemployment. Id. at 132:15-17. Plaintiff also testified that she said he was furloughed until court re-opened. Id. at 132:8-10. Eventually, she hung up. Id. at 132:25. Defendant Goldman presented her version of the conversation at her deposition:

GOLDMAN: I said, Well, Jeff I guess that means you're retiring. And he said, No, that doesn't mean that. Could you fire me so that I could collect unemployment? . . . And I said, Jeff, I'm going to take this as your retirement, that's not what happened. I said, You have a pension. Why would I fire you? Why would you take unemployment? You're refusing to come to work, and you have a pension. If that's what you're going with, go with your pension and enjoy your retirement.

QUESTION: So just to be clear, did he say the words he was retiring, or did he tell you he wasn't coming to the office?

GOLDMAN: No. What he told me was that I should fire him. He had stated in a previous correspondence with Judy that he was not coming to work, he was not going to court, which was his job. So if he stopped going to court, and he's not coming to work - his job did not entail working from home, and he never stated if, when he would ever return to court, so I assumed he was quitting. He said he wanted to be fired so he could collect Unemployment, pure and simple.

ECF No. 98, Ex. 2 Jane Goldman Deposition (“J. Goldman Dep.”) 25:14-26:22. Defendants have no written records of whether Plaintiff's request to work from home was granted or denied. Pl. 56.1 ¶ 90.

It is uncontested that immediately after the call, Defendants cut off Plaintiff's access to the computer network, his work email, and his work computer. Id. at ¶ 92. Defendants also terminated his health insurance benefits. Id. at ¶ 93. They later submitted signed paperwork to the New York Department of Labor regarding Plaintiff's unemployment insurance claims, stating that the reason for his unemployment was that he had “effectively resigned/retired.” Id. at ¶ 97-98.

DISCUSSION

I. Legal Standards

A. Summary Judgment

Plaintiff moves for partial summary judgment on liability only for disability discrimination under the New York...