Mulhern v. Eastman Kodak Co.

• Citation: 191 F.Supp.2d 326
• Decision Date: 25 January 2002
• Docket Number: No. 00-CV-6261 CJS.,00-CV-6261 CJS.
• Parties: Kevin MULHERN, Plaintiff, v. EASTMAN KODAK COMPANY, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York

191 F.Supp.2d 326

Kevin MULHERN, Plaintiff, v. EASTMAN KODAK COMPANY, Defendant.

No. 00-CV-6261 CJS.

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

January 25, 2002.

COPYRIGHT MATERIAL OMITTED

Charles W. Rogers, Mark Hannabury, Rochester, NY, for Plaintiff.

Todd R. Shinaman, Nixon Peabody LLP, Rochester, NY, for Defendant.

DECISION AND ORDER

SIRAGUSA, District Judge.

This is an action alleging that defendants discriminated against the plaintiff in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and New York State Human Rights Law ("NYHRL"), N.Y. Executive Law § 290 et seq. Now before the Court is defendant's Motion for Summary Judgment [# 15]. For the reasons that follow, that motion is denied.

BACKGROUND

Unless otherwise noted, the following facts are undisputed. The plaintiff, Kevin Mulhern, was born with Nail-Patella Syndrome, "a rare inherited disorder ... characterized by abnormalities of bone, joints, fingernails and toenails, and kidneys." MERCK MANUAL OF DIAGNOSIS AND THERAPY, p.1907 (17th ed.1999). In 1979, plaintiff began working at the defendant, Eastman Kodak Company ("Kodak"), and in or about 1987, he transferred to the Production Flow Unit ("PFU") in the Color Film Manufacturing Department. For purposes of this motion, it is sufficient to note that the PFU included various separate areas of operation, including the 3R area, PRS area, 8 Room, Hopper Room, and Filter Manufacturing. The 3R area consisted of two main tasks, film rewind and film retest. (Mulhern Deposition, pp. 191-92). Workers in the 3R area were required to lift up to 40 pounds, push and pull carts weighing up to 1,500 pounds, lift, climb and stretch, and to walk and stand several hours per shift. (Id., p. 38). Workers in the PRS, on the other hand, were essentially bookkeepers, who had to use computers, sit, and walk. Employees required more training to work in the PRS than they did to work in 3R. (Scott Deposition p. 45). The PRS section consisted of four separate tasks, a 3R coordinator, an off-line operator, an on-line operator, and an "SDC" operator.¹ (Mulhern Deposition, pp. 47-48, 59; Scott Deposition, p. 52).

Plaintiff began working in the 3R area, and eventually attained the position of lead operator on his shift, which position he held for approximately ten years. However, as a result of his Nail-Patella Syndrome, the work in the 3R area caused him to experience collapsing arches and severe pain in his back and legs. (Mulhern Deposition, pp. 39, 71). Nonetheless, he continued working in the 3R area until approximately 1996.

In 1996, plaintiff obtained a transfer to the PRS section of the PFU, because the work there was less physically demanding. (Mulhern Deposition, pp. 39-40). Plaintiff indicates that he had no problem performing the work in the PRS area. (Id., p. 59). As a result of working in both the 3R and PRS areas, plaintiff became the only employee in the PRS and 3R areas who was trained to perform all of the various tasks as to both assignments. Accordingly, although he worked primarily in the PRS section, plaintiff also occasionally worked in the 3R area when that area needed additional workers, however, he has indicated that, because of his physical ailments, he was "barely" able to perform the 3R work. (Id., pp. 46, 59).

In 1998, the defendant began implementing a policy, whereby separate work areas were to be combined into zones, and employees were to be cross-trained to perform the various tasks within the zone. Defendant indicates that, due to severe budget constraints and downsizing, it was necessary that employees be able to work flexibly between various tasks within a particular zone. Plaintiff agrees that this was the purported goal of the zone policy. (Mulhern Deposition, p. 59). Pursuant to this policy, the 3R and PRS areas were combined into one zone, meaning that PRS workers were expected to also work in the 3R area.

The extent to which workers had to rotate, however, is unclear, since there is no written job description pertaining to workers in the PRS/3R zone, and plaintiff's supervisors have provided differing explanations. For example, Marianne Valerio, plaintiff's zone leader, indicated that PRS/3R operators such as plaintiff had to be cross-trained in each position and able to perform each function. (Valerio Deposition, p. 25). Later, she indicated employees had to be able to perform some, but not all, of the tasks within the zone, and that there was no minimum number of tasks to be performed. (Id., pp. 49-50). Still later, however, she stated that, there was a minimum requirement, which was that an employee had to be able to perform both tasks in 3R, and only one task in PRS, the entry-level position of on-line operator. (Id., pp. 50-51). On the other hand, Ronald VanHarken, the Operations Director of the PFU and the most senior Kodak Supervisor deposed in this action, indicated that it was not a requirement that each employee of the PRS/3R zone perform all tasks, or even some tasks within both areas, but rather, that each particular shift be able to handle whatever situation might arise. In that regard, he indicated that each shift supervisor had to make a determination as to whether or not he had a sufficient number of employees to perform the tasks required during that shift. (VanHarken Deposition, pp. 80-81). VanHarken subsequently indicated that each employee had to at least have the ability to perform all of the tasks in a given zone, although he also acknowledged that not all employees in plaintiff's zone were trained to perform all of the various tasks. (Id., pp. 101-104).

Plaintiff's supervisors also gave conflicting statements about whether or not employees' essential job functions were effected by their level of training. For example, Valerio indicated that, in 1998, not all PRS/3R zone employees actually worked at all of the various tasks within the zone, because they were not trained for the particular jobs. (Valerio Deposition, p. 45-46). However, she indicated that tasks for which employees were not trained were still essential functions of the job. (Id., p. 46). On the other hand, John Scott testified that an employee's essential job functions were determined by his certification level. (Scott Deposition, p. 39). More specifically, Scott indicated, that as of 1998, it became an essential job requirement of all employees of both the PRS and 3R areas that they be able to work in both the PRS and 3R areas, however, not until they were trained: "[A]s they received training, that they be able to work in both areas was an essential job function." (Id., p. 65)(emphasis added). In that regard, Scott testified that, if, in 1998, plaintiff had only been certified to work in PRS, he would have been able to perform the essential functions of his job. (Id., pp. 49-50). Subsequently, however, he testified that an employee's essential job functions could include tasks for which he had not been trained. (Id., pp. 100-02). In any event, the supervisors agree that employees were never told that they would be terminated if they were unable to rotate. (Valerio Deposition, p. 52; VanHarken Deposition, p. 121).

In June 1998, in response to the creation of the 3R/PRS zone, and due to his difficulty performing the heavy work in the 3R area, plaintiff obtained a "work prescription," because he wanted "protection from doing heavy work." (Mulhern Deposition, pp. 68-69). The work prescription required him to avoid bending, pushing, and pulling, and limited him to standing one hour per 8- or 12-hour shift, which prevented him from working in the 3R area, the 8 Room, and the Hopper Room, but did not affect his work in the PRS area. (Id., pp. 69-71). At his deposition, plaintiff indicated that he was not aware of any accommodation that would have permitted him to work at any PFU job other than the PRS. (Id., pp. 82, 112, 169-70). As a result, the only accommodation which plaintiff ever requested was that he be allowed to work exclusively in the PRS. (Id., pp. 70, 82, 217).

Defendant's procedure regarding work prescriptions required the company's medical department to send an employee's work prescription to the employee's supervisor, who would then complete the form, indicating whether or not the employee could perform his job. If the employee needed an accommodation in order to perform his job, the supervisor would also complete a document entitled "Accommodation Request Documentation," explaining what type of accommodations were considered, and whether or not the accommodation would be appropriate and/or effective. (See, e.g., Shinaman Affidavit, Exhibit I). Upon receiving plaintiff's work prescription, plaintiff's supervisor, John Scott, wrote that, "Kevin will be assigned to his primary task in PRS which will not conflict with this [sic] restriction." (Rogers Affidavit, Exhibit A)(emphasis added). Scott indicated that, at that time, he did not believe it was an accommodation to allow plaintiff to work solely in PRS. (Scott Deposition, p. 36-37).

In August of 1998, defendant's medical department issued an updated work prescription, with essentially the same work restrictions, and Scott again indicated that he would assign plaintiff to the PRS. (Mulhern Deposition, p. 72). At that time, however, Scott indicated that he considered it an accommodation to allow plaintiff to work solely in the PRS. (Scott Deposition, pp. 36-37). For the rest of 1998, plaintiff worked exclusively in the PRS, except for 12 hours working in the 8 Room Hyper, a specialized task within the 8 Room that involved coating film. (Mulhern Deposition, p. 84).

In November of 1998, plaintiff informed the defendant's medical office that he would be having knee surgery in January 1999. Plaintiff indicates that at that time, a company medical nurse, Joyce Schwab, told him that if he returned from surgery with any kind...