Lavender v. Verizon N.Y. Inc.
| Decision Date | 09 February 2023 |
| Docket Number | 17-CV-6687(JS)(ARL) |
| Parties | EILEEN S. LAVENDER, Plaintiff, v. VERIZON NEW YORK INC., MICHAEL DZUGAN, PETER ALAGNA, KEN MONFREDO, FIOS MANAGER UNKNOWN NAME, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
For Plaintiff: Eileen S. Lavender, Pro se[1]
For Defendants: Erika D. Cagney, Esq. Jessica Kastin, Esq. Jones Day
Presently before the Court are Plaintiff's Motion for Summary Judgment (hereafter “Pl.'s Motion”) (ECF No 70); and Defendants' cross-motion for Summary Judgment (hereafter “Cross-Motion”) (ECF No. 76), each filed pursuant to Federal Rule of Civil Procedure 56. Plaintiff argues she has satisfied her burden in establishing that Defendants discriminated against her in violation of the Americans with Disabilities Act of 1990 (hereafter the “ADA”): (1) by failing to provide her with reasonable accommodations; and (2) for disparate treatment in failing to provide her with equal employment opportunities and terms, conditions, and privileges of employment. Defendants counter that: (1) the individual named defendants cannot be held individually liable since the ADA does not permit for individual liability; and (2) Plaintiff cannot satisfy her prima facie burden under the ADA because she was not a qualified individual under its terms.
For the reasons that follow, Plaintiff's Motion for Summary Judgment is DENIED, and Defendants' Cross-Motion for Summary Judgment is GRANTED IN ITS ENTIRETY.
I. Facts[2]
Defendant Verizon New York Inc. (hereafter “Verizon,” “Defendant,” or “Company”), “is a global leader in delivering innovative communications, information and entertainment products and services.” (Defs.' 56.1 Stmt. ¶ 2.)
Kenneth Monfredo (hereafter “Monfredo”), Mike Dzugan (hereafter “Dzugan”), and Peter Alagna (hereafter “Alagna”) (together the “Individual Defendants” and together with Verizon “Defendants”) were, at various times, in Plaintiff's reporting chain during her employment with Verizon. (See Defs.' 56.1 Stmt. ¶¶ 3-5; Pl.'s 56.1 Counterstmt. ¶¶ 3-5.) Daniel Farrington (hereafter “Farrington”) is a Verizon employee who was initially named as a Defendant in this case under the moniker “Fios Manager Unknown Name.” (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1 Counterstmt. ¶ 6.) However, Farrington was never served with this lawsuit and therefore is not an individual defendant. (Id.)
Eileen Lavender (hereafter “Plaintiff”) “is a Verizon Employee who is currently on disability leave.” (Defs.' 56.1 Stmt. ¶ 1.) Plaintiff was placed on disability leave on November 17, 2015. (Pl.'s 56.1 Stmt. ¶ 3.)
Verizon maintains both an Equal Employment Opportunities Policy (hereafter the “EEO Policy”) and an Americans with Disabilities Act Policy (hereafter the “ADA Policy”). (Def.'s 56.1 Stmt. ¶¶ 8-9; Pl.'s 56.1 Counterstmt. ¶¶ 8-9.) In the EEO Policy, Verizon commits to “comply fully with all laws providing equal opportunity to all persons without regard to . . . disability . . . or any other protected category under applicable law.” ( Similarly, Verizon's ADA Policy states that it is committed to “providing equal employment opportunities and treating qualified individuals with disabilities without discrimination in all employment decisions.” (ADA Policy, Ex. B, ECF No. 78-2, attached to Ferrari Decl.)
Additionally, Verizon has a Health Impairment Plan, colloquially referred to as the “HIC Process,” for employees who develop long-term or permanent impairments. (Def.'s 56.1 Stmt. ¶ 15; Pl.'s 56.1 Counterstmt. ¶ 15.) Generally, “[t]he first step [in the HIC Process] . . . requires departments to explore possible reasonable accommodations” for the affected employee. (HIC Process, Ex. B, ECF No. 81-2, attached to Cagney Decl., § 2.2.) However, where an accommodation cannot be made, the HIC Process includes a three-month job search designed to provide the employee with priority placement for other jobs within Verizon. (Pl.'s 56.1 Counterstmt. ¶ 16.)
Procedurally, “[i]f Medical[3] has indicated that the restriction will last more than six months . . . the HI-1 form . . . will be initiated by the Department.” (Pl.'s 56.1 Stmt. ¶ 178; Def.'s 56.1 Counterstmt ¶ 178.) “If accommodation is made or if the restriction was removed by [Medical] a [c]ompleted [HI-2 form] should be sent to the HIC coordinator.” (Pl.'s 56.1 Stmt. ¶ 179; Defs.' 56.1 Counterstmt. ¶ 179; HIC Process § 3.12.) A HI-3 form should be prepared to obtain Medical's concurrence “if a reasonable accommodation is not possible, but a lateral assignment can be made within the Department.” (HIC Process § 3.13.) Where “no reasonable accommodation or lateral assignment can be made within the Department, an HI-3 Form must be completed listing reasons in Section I and signed by the employee's district level manager as Department Authorization.” (Id. at § 3.14.) Additionally, pursuant to Section 3.15 of the HIC Process:
The supervisor should arrange a meeting with the employee to determine his or her understanding of the restriction, and of the [] Medical recommendation. The supervisor must explain in detail the Health Impairment Process, including the provisions for restoral if a downgrade is necessary. Following the discussion, Section 1, page 2 of the HI-3 Form is completed, noting that the above information was explained to the employee, and the employee's signature is obtained. (If the employee prefers not to sign, the supervisor should make this notation.)
(Id. § 3.15 (emphasis added).)
Plaintiff began working at Verizon as a Telephone
Operator when the Company was known as NYNEX in 1997. (Pl.'s 56.1 Stmt. ¶ 2; Defs.' 56.1 Counterstmt. ¶ 2). Plaintiff held this position until December 31, 2005. (Pl.'s Dep. Tr. I, ECF No. 71-31, attached to Pl.'s 56.1 Counterstmt., 40:5-18.) Subsequently, Plaintiff became a Field Technician (hereafter “FT”) and began training for this role on January 1, 2006. (Pl.'s 56.1 Stmt. ¶ 4; Defs.' 56.1 Counterstmt. ¶ 4.) Plaintiff's training for the FT role required participation in, inter alia, Pole Climbing School. (Pl.'s 56.1 Stmt. ¶ 5; Defs.' 56.1 Counterstmt. ¶ 5). After training, Plaintiff was assigned to the “Enterprise Specials North Gang” (hereafter “Specials North”). (Defs.' 56.1 Counterstmt. ¶ 6; Pl.'s 56.1 Counterstmt. ¶ 22.)
FTs have numerous job responsibilities that require work in various environments. (Defs.' 56.1 Stmt. ¶ 23; Pl.'s 56.1 Counterstmt. ¶ 23.) For example, an FT must work “outside in all weather conditions” and, inter alia, “climb[] poles and ladders, and work[] aloft for long periods using tools and test equipment.” (Defs.' 56.1 Stmt. ¶ 23; Pl.'s 56.1 Counterstmt. ¶ 23.) When climbing, FTs can use: (1) climbing poles; (2) six-foot ladders; (3) 24-foot ladders; and/or (4) bucket trucks. (Pl.'s 56.1 Counterstmt. ¶ 23.) Plaintiff admits that climbing was “part of [her] job.” (Pl.'s Dep. Tr. I 223:7-16.) Indeed, the FT's official duties, including the climbing requirement, are articulated in a written job description. (See Field Technician Job Description, Ex. C, ECF No. 81-3, attached to Cagney Decl. (hereafter the “FT Description”).) In addition to climbing, the FT Description “includes a 100-pound pushing, pulling, and lifting requirement.” (Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1 Counterstmt. ¶ 24.)
Plaintiff admitted in her deposition that if there was a reorganization at the Company, or if she were transferred to a role outside Specials North, she could “end up doing” certain of the duties articulated in the job description that she did not presently perform as a Specials Technician, subject to receiving training for that specific job. (Pl.'s Dep. Tr I 216:7-16; 221:21-223:4.) Plaintiff further admitted that the duties listed in Section F of the FT Description were “part of [her] job.” (Pl.'s Dep. Tr. I 223:7-16.) Alagna also testified that an FT must be able to climb. (Alagna Dep. Tr., Ex. 98, ECF No. 71-28, attached to Pl.'s 56.1 Counterstmt., 62:23-63:3.) Further, Alagna testified that he believed climbing to be an essential function of Plaintiff's role. (Id. at 185:4-6.)
A pole job requires use of steps or a ladder. (Pl.'s Tr. 96:18-21.) “Not every job requires climbing,” and an FT does not know if climbing will be necessary “unless [he] go[es] out there and see[s].” (Alagna Dep. Tr. 84:2-14.)
Regarding the 100-pound lifting requirement, Plaintiff testified that she could not lift 100 pounds, but also testified that she was never required to lift this much in her role as a Specials Technician. (Pl.'s Dep. Tr. I 49:9-14.) Plaintiff testified that her job required her to lift no more than 60 pounds and that “[w]hen you were tested, you were required, and the [job listing] stated, [to lift] 60-pounds.” (Id.) Plaintiff further testified that in Specials North she “never had to lift anything over 60-pounds [and that] [t]he heaviest thing that [she] ever had to lift was the ladder” because Specials North “don't have a lot of heavy equipment.” (Id. at 226:13-17.)
In or around August 2006 “Plaintiff's company van was struck by a car while parked on [a] job site.” (Pl.'s 56.1 Stmt. ¶ 11; Defs.' 56.1 Counterstmt ¶ 11.) Then, on or around March 2007, Plaintiff's van was struck by a car while the van was stationary at a red light. (Defs.' 56.1 Stmt. ¶ 33; Pl.'s 56.1 Counterstmt. ¶ 33.) The swelling caused by the injuries sustained in these accidents eventually impacted Plaintiff's ability to work as an FT. (Pl.'s Dep. Tr. I 53:22-54:5.) For example, Plaintiff testified that she “lost control of [her] hands,” (id. at...
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