Malzberg v. N.Y. Univ.

• Decision Date: 25 March 2022
• Docket Number: 19-cv-10048 (LJL)
• Parties: LAURENCE MALZBERG, Plaintiff, v. NEW YORK UNIVERSITY, Defendant.
• Court: U.S. District Court — Southern District of New York

LAURENCE MALZBERG, Plaintiff, v. NEW YORK UNIVERSITY, Defendant.

No. 19-cv-10048 (LJL)

United States District Court, S.D. New York

March 25, 2022

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Plaintiff Laurence Malzberg (“Malzberg” or “Plaintiff”) brings claims against his former employer New York University (“NYU” or the “Hospital” or “Defendant”), alleging that Defendant discriminated against him in violation of the Americans with Disabilities Act and the New York City Human Rights Law by failing to accommodate his back-related disability. Dkt. No. 1. Defendant moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment dismissing Plaintiff's complaint with prejudice. Dkt. No. 60.

For the following reasons, the motion for summary judgment is denied.

BACKGROUND

The following facts are undisputed for purposes of this motion except where otherwise indicated.

I Malzberg's Work as a Physician's Assistant and His Back Pain

Over the course of his eighteen-year career at NYU Langone, from 2001 to 2019, Malzberg worked as a physician's assistant (“PA”) at various locations-the Hospital for Joint Disease (2001-2012, 2013-2019), the Interventional Radiology Department (“IR”) (2005-2012), the Cancer Center (2012), and the Faculty Practice Group (also known as the Faculty Practice Organization) (2012-2019). Dkt. No. 68 ¶ 97; Dkt. No. 74 ¶ 97. Malzberg began working as a PA at the Hospital for Joint Disease in 2001, and, in or around July 2005, he accepted a position as a PA in IR. Dkt. No. 63 ¶¶ 2-3. In the IR PA position, Malzberg learned to insert Peripherally Inserted Central Catheters (“PICC lines”), mediport placements and removals, permcath placements, insertion of drainage catheters, and generally assisted the IR doctors with paperwork and patient care. Id. ¶ 4. Beginning in or around September 2005 in addition to working in IR, Malzberg worked at other locations-the Hospital for Joint Disease and NYU's main hospital-inserting PICC lines, mediports, and permcaths. Id. ¶ 5.

Plaintiff developed back pain in or around 2005 or 2006 while he was a PA in IR. Dkt. No. 68 ¶ 67; Dkt. No. 74 ¶ 67. Beginning at approximately that same time, Malzberg experienced difficulty standing for more than fifteen to twenty minutes at a time because of his back pain.^[1] Dkt. No. 68 ¶ 72; Dkt. No. 74 ¶ 72. In or around 2006, Malzberg had an X-ray of his back, and in or around 2008, he had an MRI scan of his back. Dkt. No. 63 ¶ 9. The resulting MRI report summarizing the results as “[m]ild multilevel discogenic degenerative changes.” Dkt. No. 68 ¶ 70; Dkt. No. 74 ¶ 70. Malzberg did not provide the X-ray records or the MRI scans to NYU. Dkt. No. 62 ¶ 20; Dkt. No. 68 ¶ 20. At some time between November 2008 and March 2019, Malzberg sought treatment for his back from an acupuncturist and a chiropractor. Dkt. No. 68 ¶ 71; Dkt. No. 74 ¶ 71.

In or around October 2012, Malzberg was instructed to report to NYU's Cancer Center where he performed outpatient CT scans. Dkt. No. 63 ¶ 6. In or around 2013, Malzberg resumed his position inserting PICC lines at the Hospital for Joint Disease while continuing to perform outpatient CT scans. Dkt. No. 63 ¶ 8. From 2013 through 2019, Malzberg performed his PA job without accommodations. Dkt. No. 62 ¶ 16; Dkt. No. 68 ¶ 16.

There is no genuine dispute regarding the different physical demands required by Malzberg's PA role in IR versus his other PA roles. Regarding performing CT scans, which was not part of Malzberg's PA role in IR, the parties agree that Malzberg always performed CT scans while sitting down and that the CT scans did not require Malzberg to wear protective equipment. Dkt. No. 63 ¶ 7; Dkt. No. 68 ¶ 98; Dkt. No. 74 ¶ 98. By contrast, inserting PICC lines required standing up and wearing a lead suit or apron. Dkt. No. 68 ¶ 99; Dkt. No. 74 ¶ 99. Malzberg inserted PICC lines as part of his work in both IR and the Hospital for Joint Disease. Dkt. No. 63 ¶¶ 4-5, 8. But there is no genuine dispute that inserting PICC lines at the Hospital for Joint Disease was less painful for his back than inserting PICC lines in IR; that case volumes at the Hospital for Joint Disease are “much less” than in IR; that Malzberg performed PICC-line insertions at the Hospital for Joint Disease faster and more easily than he performed the same procedure in IR, at least in part because the patients' conditions were less severe and there was more time between patients; and that, when inserting PICC lines at the Hospital for Joint Disease, Malzberg generally spent no more than ten to fifteen minutes standing at one time. Dkt. No. 68 ¶¶ 100-103; Dkt. No. 74 ¶¶ 100-103. There is also no genuine dispute that, from 2015 to 2019, PICC-line insertions at the Hospital for Joint Disease were the only job responsibility Malzberg had that required standing up while wearing a lead suit or apron. Dkt. No. 68 ¶ 104; Dkt. No. 74 ¶ 104.

II. Discussions Regarding Malzberg's Return to IR

On January 15, 2019, Dr. Leon Rybak (“Rybak”), Vice Chair of Operations in the Radiology Department, asked Malzberg how he would feel about intermittently doing some work in IR in addition to his then-current responsibilities. Dkt. No. 68 ¶ 107; Dkt. No. 74 ¶ 107. Malzberg testified that he told Rybak that “going back there standing in that type of position causes [him] back pain which has gotten worse over time.” Dkt. No. 67 (“Simpson Decl.”), Ex. 3 at 110; see also Dkt. No. 68 ¶ 108. But Rybak denies ever recalling hearing Malzberg say directly that he suffers from back pain. Simpson Decl., Ex. 10 at 7; see also Dkt. No. 74 ¶ 108. It is undisputed, however, that Malzberg asked Rybak to “give [him] details and we will talk” or to “let [him] know what it all entails and we will discuss.” Dkt. No. 68 ¶ 109; Dkt. No. 74 ¶ 109.

On January 24, 2019, Daniel Alexa (“Alexa”), Radiology Department Administrator, sent an email to Michael Recht, Chair of Operations and Rybak's boss, stating that “Leon [Rybak] has some concern that [Plaintiff] will not stay [in IR] if we move him - I think it would be okay if he does happen to leave....We could replace him with a less expensive APP [advanced practice practitioner].” Dkt. No. 68 ¶¶ 111, 127; Dkt. No. 74 ¶¶ 111, 127.

On February 13, 2019, Alexa emailed Rybak and Dr. Akhilesh Sista (“Sista”), who was Division Chief of IR, proposing they talk about Plaintiff's transition back to IR and alerting them, “I recognize he may not love this and we will have to deal with that.” Dkt. No. 68 ¶¶ 111, 128; Dkt. No. 74 ¶¶ 111, 128. Rybak responded to the email, “I know from speaking to him in the past that he is going to ask about the nature of the cases and will specifically ask about his fluoro^[2] exposure. He is reluctant to do any long cases which involve fluoro. We need to be as frank and open with him as possible and if the job doesn't fit for him, we will have to let him know that we will have to find someone else who does want the position.” Dkt. No. 68 ¶ 129; Dkt. No. 74 ¶ 129. The next day, Alexa emailed John Davidson (“Davidson”), Senior Director of PA Services and Care Management, alerting him that “we will be meeting with Larry Malzberg at 1:30 today, ” that “[w]e are going to let him know that we will need him to support the VIR^[3] dept at Tisch now, ” and that “Larry may not be very excited about this change and he may come to you.” Dkt. No. 68 ¶ 130; Dkt. No. 74 ¶ 130.

On February 14, 2019, Malzberg attended a meeting with Rybak, Alexa, and Sista. Dkt. No. 62 ¶ 33. The parties dispute what happened at this meeting. According to Defendant, at that meeting, Malzberg was advised that his current position was ending, effective March 1, 2019, and he was offered a position in IR, where he previously worked. Dkt. No. 62 ¶¶ 33-34. Defendant submits that Malzberg did not ask anyone at the meeting about the specifics of the offered position and did not inquire about job duties other than doing procedures. Id. ¶ 35. Defendant submits that the only questions Malzberg asked had to do with “the nature of the position in terms of what his responsibilities would be and what kind of cases he would be doing.” Dkt. No. 74 ¶ 113 (quoting Simpson Decl., Ex. 10 at 130). In Defendant's view, Malzberg did not appear to consider accepting the offered IR position and said that he could not perform the job. Dkt. No. 62 ¶¶ 38, 44.

Each of the supervisors at the February 14, 2019 meeting remember what happened at the meeting somewhat differently. Sista testified that Malzberg mentioned something about a physical impediment but could not recall what impediment it was, Dkt. No. 74 ¶ 113 (citing Simpson Decl., Ex. 1 at 124); Rybak testified that Malzberg made no references to his back pain, id. (citing Dkt. No. 73, Ex. P at 131); and Alexa testified that Malzberg did not raise any concerns about his physical abilities at the meeting, id. (citing Simpson Decl., Ex. 11, at 103). Defendant further states that Sista told Malzberg that he was willing to work with him to carve out a position that accommodated his physical needs; that there were many different tasks involved in the offered IR position; and that NYU would “reduce any sort of difficulty [Malzberg has] physically with the job.” Dkt. No. 62 ¶¶ 36-37 (quoting Dkt. No. 64 (“Gilbride Decl”), Ex. E at 124-25).

Plaintiff however, disputes this version of events. Plaintiff submits that, at the February 14, 2019 meeting, he was advised that his help was needed in IR and that he would be required to report there on a fulltime basis, effective March 1, 2019. Dkt. No. 68 ¶¶ 33-34. He does not remember if he asked if the position would include anything other than doing procedures. Id. ¶ 35. Plaintiff states that he told NYU that he could not perform the IR...