Monterroso v. Sullivan & Cromwell, Llp

• Decision Date: 28 October 2008
• Docket Number: No. 06 Civ. 3404 (SAS).,06 Civ. 3404 (SAS).
• Citation: 591 F.Supp.2d 567
• Parties: Cynthia L. MONTERROSO, Plaintiff, v. SULLIVAN & CROMWELL, LLP, Defendant.
• Court: U.S. District Court — Southern District of New York

591 F.Supp.2d 567

Cynthia L. MONTERROSO, Plaintiff, v. SULLIVAN & CROMWELL, LLP, Defendant.

No. 06 Civ. 3404 (SAS).

United States District Court, S.D. New York.

October 28, 2008.

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Cynthia Monterroso, Staten Island, NY, pro se.

Robin D. Fessel, Esq., Lisa M. White, Esq., Sullivan & Cromwell LLP, New York, NY, for Defendant.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

Plaintiff Cynthia Monterroso, proceeding pro se, brings suit against Sullivan & Cromwell, LLP ("S & C" or the "Firm") under the Americans with Disabilities Act of 1990¹ (the "ADA") and Title VII of the Civil Rights Act of 1964² ("Title VII"). Plaintiff alleges that S & C discriminated against her on the following grounds: failure to accommodate her disability; unequal terms and conditions of employment; retaliation; and hostile work environment. S & C now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), arguing that: plaintiffs, reasonable accommodation claim fails as a matter of law; plaintiff has failed to establish a prima facie case of retaliation under the ADA; and plaintiffs hostile work environment claims under the ADA and Title VII are conclusory, without evidentiary support, and therefore lack merit. For the following reasons, defendant's motion is granted in part and denied in part.

I. BACKGROUND³

A. Plaintiff's Employment History

S & C employed Monterroso as a secretary for almost thirteen years, from June 28, 1993 to March 10, 2006.⁴ On September 17, 2004, a Friday, plaintiff left work early because she had difficulty breathing.⁵ Monterroso sought treatment in a hospital emergency room and called in sick the following Monday and Tuesday.⁶ Three weeks later, on October 8, 2004, plaintiff once again left work early to seek emergency room treatment for breathing difficulties.⁷ Monterroso claimed that her breathing difficulties were caused by "fumes" from S & C's Reproduction & Photocopy Department, located on the 28th floor, where she worked at the time.⁸ After this incident, plaintiff was out of work for eight consecutive work days, from October 11, 2004 to October 20, 2004.⁹ Because Monterroso had already exhausted her sick leave for 2004, she was not paid for this absence until her claim was approved by the Firm's workers' compensation insurance carrier.¹⁰ During her absence, Monterroso told the Firm's Secretarial Services Department that she would not return to work until she was transferred to a new position on a different floor.¹¹ S & C accommodated plaintiff's request and temporarily moved her into a floating position off the 28th floor.¹²

When Monterroso returned to work on October 21, 2004, she met with Susan Vahrenkamp and Catherine Kabelac, Director and Assistant Director of the Secretarial Services Department, respectively.¹³ Vahrenkamp explained that because plaintiff did not want to work on the 28th floor, she would have to work in a floating position until a permanent position opened up on another floor.¹⁴ Monterroso floated for a period of time thereafter.¹⁵ Although plaintiff was offered permanent positions that subsequently became available, she refused them because they involved assisting Firm partners.¹⁶ On November 4, 2004, plaintiff was given a stationary position on the 33rd floor, which continued for two months despite a low workload.¹⁷

Beginning on January 10, 2005, plaintiff was out of work for an extended period because of back problems.¹⁸ On February 25, 2005, plaintiff notified the Firm that her doctor released her to return to work.¹⁹ As with all employees returning to work from disability leave after receiving a medical release from their doctors, the Firm's Benefits Department asked Monterroso to provide a "Fit to Return" note before returning to work.²⁰ Monterroso did so but the note contained certain restrictions and stated that she had pain in her back and legs.²¹ Because these restrictions were of concern to the Benefits Department, the Firm decided that plaintiff should undergo an Independent Medical Examination ("IME") before returning to work.²² On March 16, 2005, the Firm received the results of the IME, which concluded that Monterroso could work within her job description.²³ On March 21, 2005, plaintiff was allowed to return to work, having been paid at full salary during her entire absence.²⁴

On April 5, 2005, plaintiff left work and took a car service to an emergency room, claiming that she was having breathing difficulties attributable to cleaning solutions used by the Firm's Maintenance Department.²⁵ Monterroso called in sick the next day.²⁶ On May 18, 2005, accompanied by Kabelac, plaintiff took a car service to an emergency room, claiming that she had an asthmatic reaction to furniture polish being used near her desk area.²⁷ Monterroso called in sick the next day.²⁸ On May 25, 2005, plaintiff once again took a car service to an emergency room complaining of an asthmatic reaction to furniture polish and called in sick the following two days.²⁹

B. Documentation Regarding Plaintiff's Medical Condition

After Monterroso's last absence on May 25, 2005, the Firm decided that she should have another IME to assess her physical limitations and determine if she could return to work safely.³⁰ Vahrenkamp informed Monterroso that she needed to obtain a medical report from a pulmonologist so that the Firm could assess the need for and feasibility of an accommodation.³¹ Plaintiff was also told that she was being placed on paid administrative leave until she complied with the Firm's request for medical information.³²

On May 27, 2005, the Firm received a letter from Dr. James L. Bruno, plaintiffs pulmonologist, stating that Monterroso "should not be exposed to pulmonary-offending agents such as chemicals, fumes, toxins, etc. as these harmful exposures will worsen her respiratory condition."³³ Dr. Bruno also sent a "Fit to Return" note, dated May 31, 2005, which referenced his May 27th letter.³⁴ To better assess an appropriate accommodation, the Firm requested more specific information concerning Dr. Bruno's general reference to "pulmonary-offending agents.³⁵ a Therefore, on June 1, 2005, Melanie Corpuz, Director of the Benefits Department, wrote to Dr. Bruno and requested a list of the "pulmonary-offending agents" and more specific descriptions, if available.³⁶ Having received no response, Corpuz followed up with a phone call to Dr. Bruno's office on June 8, 2005, and spoke with his wife, Elizabeth Bruno.³⁷ Mrs. Bruno told Corpuz that Dr. Bruno stated that it was impossible to pinpoint the exact causes of Monterroso's asthma attacks, but that she would try to get more detailed information from Dr. Bruno.³⁸ On June 9, 2005, Corpuz again spoke with Mrs. Bruno who allegedly informed her that Monterroso called the office and prohibited Dr. Bruno from responding any further to the Firm's inquiries regarding her medical condition.³⁹

In support of the argument that Monterroso interfered with the release of her medical information, S C points to a HIPAA form signed by Monterroso on October 20, 2004, which prevented Dr. Bruno from disclosing Monterroso's Personal Health Information to the Firm.⁴⁰ However, on June 9, 2005, Monterroso signed another HIPAA form authorizing the disclosure of a letter from Dr. Bruno, dated May 27, 2005, to the Firm.⁴¹ Thus, the June 9, 2005 Authorization effectively negated the prohibition contained in the October 20, 2004 form.

On July 12, 2005, and again on August 3, 2005, Corpuz wrote to Monterroso asking her to authorize Dr. Bruno to provide the Firm with more specific descriptions regarding the "pulmonary-offending agents" referred to in his first May 27th letter.⁴² Corpuz also asked Monterroso to provide authorization for the release of the results of her June 23, 2005 IME to the Firm.⁴³

In reply, Dr. Bruno wrote another letter, also dated May 27, 2005,⁴⁴ which states that Monterroso "has a history of irritant induced asthma which may be exacerbated by exposure to various chemicals, fumes in the air. Exposures to these pulmonary offending agents may worsen her respiratory condition."⁴⁵ Dr. Bruno also wrote a letter, dated August 10, 2005, which states that Monterroso "was advised to avoid exposure to all irritants such as chemicals, fumes, smoke, dust, etc. as these may trigger an asthma attack."⁴⁶

In response to Corpuz's August 3rd letter, Monterroso sent Corpuz a hand-written letter dated August 9, 2005.⁴⁷ In this letter, Monterroso claimed that she and Dr. Bruno sufficiently responded to the Firm's requests for medical information.⁴⁸ With regard to the release of her June 23, 2005 IME, Monterroso stated as follows:

Regarding your fourth paragraph numbered 2, Chubb has not, to this date, sent me a release regarding the IME on June 23, 2005. This is a Worker's Compensation issue. You may contact my attorney, Daniel Savino, Esq. ... To state [that] I have not signed a release I am not in possession of is clearly another false statement. Mr. Savino may be able to assist you with this matter and he will determine the release of the June 23, 2005 IME.⁴⁹

Sharron Davis, Director of S & C's Human Resources Department, sent a letter to Monterroso, dated August 17, 2005, which included a release authorizing Dr. Bruno to discuss potential workplace accommodations with the Firm.⁵⁰ Davis' letter also included a release of the results of plaintiff's June 23, 2005 IME.⁵¹ Davis warned Monterroso that her "continued refusal to provide the reasonable documentation requested may leave [S & C] with no alternative but to end your employment."⁵²

Monterroso responded to Davis' requests with a letter dated August 24, 2005.⁵³ In that letter, Monterroso explained that Dr. Bruno was preparing a "fourth letter regarding information for the necessary accommodation."⁵⁴ With regard to her June 23, 2005 IME, plaintiff wrote:

As stated previously, you may contact my attorney, Daniel Savino,...