Henny v. New York

Decision Date30 January 2012
Docket NumberCase No. 08–CV–10981 (KMK).
Citation842 F.Supp.2d 530
PartiesYolanda HENNY, Plaintiff, v. NEW YORK STATE, Office of Mental Health, Rockland Psychiatric Center, Niranjana Patel, in her official capacity, Kathy Ramcharitar, in her official capacity, and New York State, Office of the State Comptroller, New York State, Department of Civil Service as a necessary party, Defendants.
CourtU.S. District Court — Southern District of New York


Randy J. Perlmutter, Esq., Kantrowitz Goldhamer & Graifman, P.C., Chestnut Ridge, NY, for Plaintiff.

Joshua Pepper, Esq., New York State Office of the Attorney General, New York, NY, for Defendants.


KENNETH M. KARAS, District Judge:

Plaintiff Yolanda Henny, a former food service worker at the Rockland Psychiatric Center (“RPC”), brings this action against Defendants New York State, Office of Mental Health, Rockland Psychiatric Center; New York State, Office of the State Comptroller; New York State, Department of Civil Service; and two of her former supervisors in their official capacities (collectively Defendants) asserting disability discrimination claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, et seq., and race discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. Plaintiff alleges that Defendants failed to accommodate her disability, Lymphedema, and ultimately terminated her both for her disability and her race (African–American). Defendants have moved for summary judgment on all claims. For the reasons stated herein, Defendants' motion is granted in its entirety.

I. Background
A. Facts

The following facts are drawn from the Parties' Local Rule 56.1 statements, the depositions of Plaintiff and the two individual Defendants, and exhibits and declarations submitted by the Parties. Plaintiff is an African–American woman who began working at Rockland Psychiatric Center (“RPC”) as a food service worker (“FSW”) in late March 2006. (Am. Compl. ¶ 10; Decl. of Yolanda Henny (“Henny Decl.”) ¶¶ 1–2.) From an early age, Plaintiff has suffered from a chronic condition known as Lymphedema, which causes painful swelling of her left leg. (Henny Decl. ¶¶ 3–4; id. Ex. B, at 1; id. Ex. C, at 1.) According to Plaintiff, she feels pain and swelling in her leg almost daily, and long periods of standing or walking exacerbate her condition and cause her leg to swell up. ( Id. ¶¶ 4–5, Ex. C, at 1; Tr. of Deposition of Yolanda Henny (Henny Tr.) 32). Plaintiff testified that she is able to stand for up to four hours continuously, but she has difficulty standing or walking for six hours or more without a break; this had affected her at her previous jobs. (Henny Decl. ¶ 8; Henny Tr. 44–46.)

When she began working at RPC, Plaintiff was a so-called probationary employee. (Henny Tr. 32.) Probationary employees work part-time for up to a year or more before they may be hired as full-time employees. (Decl. of Kathleen Ramcharitar in Supp. of Mot. for S.J. (“Ramcharitar Decl.”) ¶¶ 4–5.) Defendants' probation policy required probationary employees like Plaintiff to work a 52–week probation period before they could be removed from probation and made a permanent employee. (Tr. of Deposition of Niranjana Patel (“Patel Tr.”) 24; Henny Decl. Ex. K, at 1.) A probationary employee “whose conduct or performance is unsatisfactory may be terminated at any time.” (Henny Decl. Ex. K, at 3.) The employee is still on probation after he/she completes a “minimum probationary period” ( id.), which, in Henny's case, was eight weeks, seeN.Y. Comp.Codes R. & Regs. tit. 4, § 4.5(b)(5)(ii). If an employee is absent above a certain number of times, the missed workdays are added to that employee's maximum probationary period. (Henny Decl. Ex. K, at 2; Reply Decl. of Kathleen Ramcharitar in Supp. of Mot. for S.J. (“Ramcharitar Reply Decl.”) ¶ 10.)

FSWs employed by Defendants work one of two shifts: a 5:30 A.M. to 2:00 P.M. shift (the “early shift”) and a 10:30 A.M. to 7:00 P.M. shift (the “late shift”). (Henny Decl. ¶ 15; Ramcharitar Decl. ¶ 3; Patel Tr. 7.) Part-time employees like Plaintiff worked a 3:00 P.M. to 7:00 P.M. shift, and had opportunities to volunteer to work extra hours during either of the two full-time shifts as well. (Ramcharitar Decl. ¶ 16; Henny Tr. 35.) Plaintiff worked the 3:00–to 7:00 shift when she began at RPC. (Henny Decl. ¶ 15; Ramcharitar Decl. ¶ 6.) During this shift, her job responsibilities included food preparation, food service during the patients' dinner hour, and cleaning up the dining room after the meal was done. (Henny Decl. ¶ 16; id. Ex E, at 1.) It is not clear to what extent Plaintiff had an opportunity to sit down during her shift: Plaintiff testified that she had a break while the patients were eating dinner during which she could sit. (Henny Tr. 34.) Regarding breakfast, Niranjana Patel, the head of the Nutrition Department at RPC and a supervisor of the facility's FSWs, testified that those FSWs performing breakfast service during the early shift would return to the kitchen to work on other tasks while the patients were eating. (Patel Tr. 11.)

Plaintiff sought to work extra hours during the early shift because, she said, the duties of the early shift were similar to those of the 3:00–to–7:00 shift. (Henny Decl. ¶ 17.) By contrast, the late shift involved what Plaintiff calls “trayline” duty: FSWs would stand for “hours” in “one spot” preparing food trays for the patients. (Henny Tr. 104.) According to Plaintiff, most of the tasks involved in trayline duty had to be performed standing up because FSWs were “part of a team process and management would not allow employees to sit.” (Henny Decl. ¶ 18.)

In about May 2006, an incident occurred between Plaintiff and a co-worker, Gina Wise, an African–American female FSW who was not a probationary employee. (Henny Decl. ¶¶ 20–21; Tr. of Deposition of Kathleen Ramcharitar (Ramcharitar Tr.) 19; Decl. of Joshua Pepper in Supp. of Mot. for S.J. (“Pepper Decl.”) Ex. 4, at 3.) According to Plaintiff, Wise complained about Plaintiff's job performance to her supervisor and, when confronted by Plaintiff, threatened to “kick somebody's ass.” (Henny Decl. ¶ 20.) Wise shouted at Plaintiff in front of other employees. ( Id.) Soon thereafter, Plaintiff had a meeting with Kathleen Ramcharitar, one of her direct supervisors, about the incident (Ramcharitar did not remember if this meeting occurred). ( Id. ¶¶ 21–22; Ramcharitar Tr. 22.) The result was that Plaintiff was not allowed to work further extra hours on the early shift [f]or a while”; Ramcharitar testified that this was to avoid further conflicts between Plaintiff and Wise. (Ramcharitar Tr. 20.)

By this time, Plaintiff had only worked “one or two early shifts.” (Henny Tr. 42.) Plaintiff did work extra hours on the late shift fairly frequently between April and November 2006. (Henny Tr. 58–64; Henny Decl. ¶ 24.) The late shift, and in particular trayline duty, required Plaintiff to stand “for long periods of time, as compared to [her] duties on the early shift” which had allowed her to rest in a sitting position. (Henny Decl. ¶ 24.) Thus, Plaintiff says, she turned down further opportunities to work extra hours on the late shift because they would require her to stand. ( Id.)

In May or June 2006, Plaintiff, who says her condition was deteriorating, approached Ramcharitar and asked whether she could serve her extra hours on the early shift rather than the late one. (Henny Decl. ¶ 25; Henny Tr. 51–53.) Plaintiff showed Ramcharitar her swollen leg and made various requests for accommodation. According to Plaintiff, Ramcharitar refused to allow her to work extra hours during the early shift without providing a reason. (Henny Decl. ¶ 27.) Plaintiff then requested that she be allowed to serve her extra hours during the late shift in the dining room, rather than on trayline duty; according to Plaintiff, Ramcharitar responded that this would show favoritism. (Henny Tr. 52.) Plaintiff then claims that she asked for a stool to sit on while performing trayline duties, or, alternatively, that she be allowed to separate her two scheduled “pass days” (i.e., days off), so that she would not have to work five days straight and have time for her leg to recover. ( Id. at 52–53; Henny Decl. ¶ 27.) 1 According to Plaintiff, Ramcharitar again refused, stating that a stool would “slow down productivity” and that pass days had to be used consecutively. (Henny Decl. ¶ 27.)

Defendants do not appear to dispute much of Plaintiff's description of this conversation. Ramcharitar, for her part, does not recall Plaintiff asking for the stool or for the ability to separate her two pass days. (Ramcharitar Decl. ¶¶ 39–40.) But, Ramcharitar states, she would have denied such requests if made; “Sitting on a stool would slow down production considerably because a person sitting on a stool could not navigate the tray line so easily and quickly as a person standing.” ( Id. ¶ 39.) As to the separate pass days, Ramcharitar explains that because the FSW job is “highly physically demanding” and workers often require “two full days ... to recover physically and mentally” before a new week of work, RPC policy and its union contract “entitles” every employee to two consecutive pass days; deviations for a single employee “would risk reprisals from the union.” ( Id. ¶ 40.) According to Plaintiff's testimony, this conversation was the only instance in which she asked anyone at her job for an accommodation for her Lymphedema. (Henny Tr. 54.) There is no evidence that Plaintiff needed or wanted accommodations to work on the 3:00–to–7:00 shift, her regular shift, and, indeed, Plaintiff testified that she was always able to perform all of her job duties. ( Id. 24–25; Henny Decl. ¶ 19.)

Plaintiff was absent from work, or arrived at work late, on several occasions. At RPC, each employee's hours are recorded on time sheets. ( See Henny...

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