Graves v. Finch Pruyn & Co., Inc.

• Decision Date: 12 July 2006
• Docket Number: Docket No. 05-3564 CV.
• Citation: 457 F.3d 181
• Parties: George GRAVES, Plaintiff-Appellant, v. FINCH PRUYN & COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

457 F.3d 181

George GRAVES, Plaintiff-Appellant, v. FINCH PRUYN & COMPANY, INC., Defendant-Appellee.

Docket No. 05-3564 CV.

United States Court of Appeals, Second Circuit.

Argued: January 23, 2006.

Decided: July 12, 2006.

Nathaniel B. Smith, Law Offices of Nathaniel B. Smith, New York, NY, for Plaintiff-Appellant.

Michael T. Wallender, Law Offices of Michael T. Wallender, Albany, NY, for Defendant-Appellee.

Before WALKER, Chief Judge, WINTER and SOTOMAYOR, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

In this employment-discrimination lawsuit, plaintiff-appellant George Graves sues his former employer, defendant-appellee Finch Pruyn & Company, Inc. ("Finch Pruyn"), alleging that Finch Pruyn forced him out of his job as a paper inspector because of his disability — a bony growth on his heel known as a bone spur — and his age. The district court granted Finch Pruyn's motion for summary judgment in an oral decision from which Graves appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and for the reasons stated below, we affirm in part, vacate in part, and remand.

BACKGROUND

Over the course of seventeen years, George Graves worked his way up from a laborer in the woodroom of paper manufacturer Finch Pruyn to a paper inspector in its quality-assurance department, a position to which he was promoted in 1991. In late 1999, Graves was diagnosed with a bone spur on the heel of his left foot, a painful condition which required surgery and treatment.¹ Because paper inspectors at Finch Pruyn are on their feet for much of their shifts, Finch Pruyn assigned Graves to "light duty" in the months preceding surgery to accommodate his foot pain. After surgery in May 2000, Graves missed three months of work while on paid disability leave to recover from the surgery, and he then returned to work in September 2000.

From September 2000 through October 2000, Graves was again assigned to light duty. At the end of October 2000, the company put Graves back on paid disability leave, informing him that no more light-duty work was available. The six months of paid disability leave to which Graves was entitled under company policy ran out in December 2000. On January 4, 2001, Finch Pruyn's human-resources ("HR") director, Michael Strich, gave Graves three options: (1) return to full-duty work immediately, (2) take a 64% pay cut (from $50,000 to $18,000 a year) and work at a desk job, or (3) have a doctor state that Graves is totally disabled and take disability retirement with the concomitant disability pension benefits of approximately $269,000. Graves elected the third option. At Graves's request, the company allowed him to work for the quality-assurance department in a sedentary job until the end of January 2001, giving Graves an income stream while he arranged for disability retirement. During this period, Graves did clerical office work and trained a new paper inspector. After this assignment, Graves performed no work for Finch Pruyn.

DISCUSSION

This court reviews de novo the district court's grant of summary judgment, construing the evidence in the light most favorable to Graves and asking whether there is a genuine issue as to any material fact and whether Finch Pruyn is entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). We first discuss Graves's disability-discrimination claims and then turn to Graves's age-discrimination claim.

I. Disability Discrimination

Section 102(a) of the Americans with Disabilities Act of 1990 ("ADA") creates a private right of action for disability-based employment discrimination. 42 U.S.C. § 12112(a).² A plaintiff suing under the ADA for disability discrimination bears the burden of establishing a prima facie case. In so-called reasonable-accommodation cases, such as this one, the plaintiff's burden "requires a showing that (1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations." Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.2004); see 42 U.S.C. § 12111(8) (defining a "qualified individual with a disability" — a person whom the statute protects — as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires"); id. § 12112(b)(5)(A) (defining "discriminate" to include a failure to make reasonable accommodations unless undue hardship would result). On appeal, the parties focus on the third and fourth elements of the prima facie case.³

Graves has not pointed to record evidence to dispute Finch Pruyn's contention that the essential functions of the job at issue, paper inspector at Finch Pruyn, include lifting up to 30 pounds and pushing heavy rolls of paper. Nor do the parties dispute that Graves's bone spur prevented him from performing these job functions without accommodation. Thus, to establish the third and fourth elements of his prima facie case, Graves must show that he could fulfill the essential job functions with reasonable accommodations that were refused by Finch Pruyn. Graves has contended that, at two points in time, Finch Pruyn should have made such reasonable accommodation.

A. Reasonable Accommodation in October 2000

In his deposition, Graves asserted that Finch Pruyn should have given him a further light-duty assignment as of October 30, 2000, rather than putting him back on disability leave after determining that there was no longer a need for the light-duty position that Graves occupied. Graves's lawyer pressed this argument again at the summary-judgment hearing, but he does not press it on appeal. The argument is therefore waived, and we will not consider it. Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).

B. Reasonable Accommodation in January 2001

1. Unpaid Leave of Absence

Graves also argued at the summary-judgment hearing, and argues now on appeal, that as of January 4, 2001, after his disability leave had expired, the company should have given him an accommodation consisting of unpaid leave to see a foot specialist about rehabilitation of his foot. As an initial matter, Finch Pruyn argues that Graves never requested such an unpaid leave of absence in January 2001. This request would matter because, generally, "it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." 29 C.F.R. pt. 1630, app. at 363 (2003); accord Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C.Cir.1999) ("An underlying assumption of any reasonable accommodation claim is that the plaintiff-employee has requested an accommodation . . . .").

It is clear that Graves did not use the phrase "unpaid leave of absence" at any point in his communications with Finch Pruyn. But Graves testified about his January 4, 2001 conversation with HR manager Strich as follows:

I told him [Strich] Dr. Yovanoff recommended Dr. William O'Connor, who is a specialist in Saratoga, another foot specialist.

I told him I was trying to make an appointment with him [Dr. O'Connor]. He asked me how long it would take. I said maybe a couple weeks. I was then told we do not have any more time. . . .

. . . .

. . . I believe I asked for more time, that I was trying to see this specialist, Dr. O'Connor. I was refused.

Graves Dep. 31:11-32:10, Feb. 24, 2004. Although it is a close call, we believe that a reasonable jury could infer from this testimony that Graves was in the process of requesting an unpaid leave of absence to obtain an appointment with Dr. O'Connor and that Finch Pruyn cut off this request. This would be an inappropriate response under Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir.2000), which held that an employee's request for an accommodation triggers a duty on the part of the employer "to investigate that request and determine its feasibility," id. at 338. To the extent that the district court held against Graves the fact that "the record is unclear about whether or not Finch [Pruyn] was made aware of [Graves's] request [for more time]," Summ. J. Hr'g Tr. 36:18-19, June 2, 2005, the district court improperly drew inferences in Finch Pruyn's favor.⁴

Of course, to satisfy the third element of his prima facie case, Graves also must show that the requested unpaid leave of absence was a reasonable accommodation. The district court held that the contemplated leave of absence would not be a reasonable accommodation because it was indefinite. Id. at 36:23-24. On appeal, Finch Pruyn adopts the district court's reasoning, arguing that the indefinite nature of Graves's request renders it unreasonable.⁵

Viewing the record in the light most favorable to Graves, it was imprecise to call the requested leave of absence "indefinite." A factfinder could find, based on Graves's testimony that he asked for "more time" to get a doctor's appointment and that it would take a "couple of weeks," see Graves Dep. 31:16, 32:8-9, Feb. 24, 2004, that Graves requested two weeks of leave — a finite amount of time — to see Dr. O'Connor and learn of his chances for rehabilitation. Granting this leave of absence would not require Finch Pruyn to hold open Graves's position indefinitely. See Parker, 204 F.3d at 338 ("The duty to make reasonable accommodations does not . . . require an employer to hold an injured employee's position open indefinitely . . ."). The district court erred in rejecting Graves's claim on the basis that the requested leave was "indefinite," Summ. J. Hr'g Tr. 34:1, June 2, 2005, and accordingly, we vacate the grant of summary judgment as to this claim of disability discrimination.⁶

2. Reassignment

Graves further contends that as a reasonable accommodation in January 2001, Finch Pruyn should...