Pimentel v. Citibank

• Decision Date: 16 March 2006
• Docket Number: Index 14040/01,6244.
• Parties: SONIA PIMENTEL, Plaintiff-Respondent, v. CITIBANK, N.A., Defendant-Appellant.
• Court: New York Court of Appeals Court of Appeals

2006 NY Slip Op 1911

29 A.D.3d 141

811 N.Y.S.2d 381

Sonia Pimentel, Respondent v. Citibank, N.A., Appellant.

6244, Index 14040/01

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

March 16, 2006, Decided

March 16, 2006, Entered

COUNSEL: Sills Cummis Epstein & Gross, P.C., New York City (David W. Garland and Jerrold J. Wohlgemuth of counsel), for appellant.

Quaranta & Associates, Mount Kisco (Merryl F. Weiner and Kevin J. Quaranta of counsel), for respondent.

JUDGES: Angela M. Mazzarelli, J.P., Richard T. Andrias, Luis A. Gonzalez, James M. Catterson, JJ. All concur except Andrias, J. who dissents in an Opinion.

OPINION BY: James M. Catterson

OPINION

Catterson, J.

In this action, the plaintiff, Sonia Pimentel, alleges that the defendant, Citibank, unlawfully terminated her employment because of her disability in violation of the New York Human Rights Law (NYHRL) (Executive Law § 296 [1] [a]) and the New York City Human Rights Law (Administrative Code of City of NY § 8-107 [1] [a]) . The plaintiff alleges that the defendant discriminated against her by refusing to transfer her to a less stressful position which did not require customer contact, and so violated Executive Law § 296 (3) (a) by failing to reasonably accommodate her disability.

The plaintiff worked for Citibank since August 1979 when she was employed in an entry level position as a clerk/typist. She was subsequently promoted to safe deposit manager and thereafter became involved in customer service. In 1995, the plaintiff became a line manager at the defendant's Washington Heights branch, located in its Financial Center at 181st Street in New York. Two years later, she was promoted to the position of client financial analyst (CFA). Her responsibilities as a CFA included customer sales, such as opening new accounts, and customer service which required her to respond to customer problems and inquiries about accounts and to handle estate accounts. In 1999, the plaintiff began suffering from depression and anxiety. She testified at her deposition that her anxiety and stress were partly the result of a test she had to take to satisfy a new job requirement. She failed the test twice in 1999, learning of her failed second attempt on August 19, 1999, the day before she started her vacation.

After taking time off for the vacation from August 20th to September 7, 1999, she did not return to work. On or about August 31, 1999, plaintiff's primary care physician, Dr. Claire M. Spininger, provided her with a note which stated that plaintiff was under her care and could not return to work until further notice. Her psychologist, Dr. Michael Glazer, testified that "she was having the typical symptoms of anxiety attacks . . . a fluttering inside herself, a disorganization of her thinking, a restlessness, a certain internal discomfort . . . ."

The plaintiff told Dr. Glazer that the primary stressor was her employment at Citibank. She admitted that failing the test contributed to her stress but also testified as to other stressful family-related factors. In describing her job-related stress, the plaintiff "was concerned about her treatment by customers" who were "rude," "demanding" and "critical of her."

Dr. Glazer additionally testified at deposition that the plaintiff had told him that she felt "shabbily" treated by her supervisor; that she went to her supervisor complaining of mistreatment by her customers; that she felt "blown off" by her supervisor, and "unsupported and uncared for."

By letter dated September 2, 1999, Dr. Glazer stated that the plaintiff was seeing him for weekly psychotherapy and could not return to work at that time. On that same date, the plaintiff telephoned her supervisor, Magda Genao, and informed her that she was not feeling well and had been referred to a therapist. At approximately the same time, the plaintiff applied for disability benefits due to depression. On or about September 16, 1999, the claims administrator for the defendant's CNA disability plan advised the plaintiff that she had approved her claim for disability benefits through September 30, 1999. The period of her disability was subsequently extended several times through February 27, 2000.

Meanwhile, on December 13, 1999, the plaintiff contacted Ms. Genao and indicated she would like to return to work. On December 16, 1999, Dr. Glazer advised CNA, by fax, that the plaintiff was ready to return to work "on a reduced level." The faxed letter stated that the plaintiff "does not feel capable of servicing customers at this time and hopes to be placed in a less stressful position." On December 22nd, the plaintiff again sought Ms. Genao's help and requested a list of available job postings. Ms. Genao stated that she had to speak with her boss and would get back to plaintiff.

On February 22, 2000, the plaintiff wrote to Jacqueline Smiley-Edwards, a Citibank human resources representative, stating that she was "ready to resume limited duties." The plaintiff enclosed a copy of Dr. Glazer's December 16, 1999 letter with her letter to Smiley-Edwards, who spoke to the plaintiff on the telephone on February 29, 2000, and again on March 6th. On the latter date, Smiley-Edwards told the plaintiff that her only choices were to return to her prior position as CFA or to continue disability. On March 9th, the plaintiff again spoke with Smiley-Edwards who informed her that her six months of disability leave had expired and that if she wanted to continue on disability, she would have to speak with CNA and apply for long-term disability. The plaintiff, however, did not want to receive long-term disability benefits. She stated that she wanted to go back to work and "re-establish her life." In October 2000, she was notified in writing that her employment had been terminated since her approved disability leave of absence had ended on May 1, and she had failed to return to work at the end of that leave.

The plaintiff commenced the instant action alleging employment discrimination and that the defendant unlawfully terminated her employment in violation of Executive Law § 296 and Administrative Code § 8-107.

After the defendant interposed an answer and some discovery had taken place, the defendant moved for summary judgment seeking dismissal of the complaint on the ground that the plaintiff failed to establish a prima facie case of employment discrimination. The plaintiff cross-moved for an order directing the defendant to comply with her interrogatories and to produce further deposition witnesses. The court denied the defendant's motion "without prejudice to renewal upon the completion of all pre-trial discovery."

The court noted that the plaintiff alleged that the defendant had failed to comply with its own policy regarding employees on leave and had merely referred the plaintiff to the disability unit rather than informing her of available alternate positions she could have filled notwithstanding her disability. The court held that the plaintiff could establish a prima facie case of employment discrimination by demonstrating that she had a contractual right to transfer or that there was an established policy of such transfers. It noted that the defendant had not furnished any objective evidence that it engaged in an interactive process to determine what a reasonable accommodation would have been under the circumstances.

The defendant moved to renew the motion following the completion of discovery. The court denied the renewal, holding that there were "issues of fact which foreclose dismissal." In particular, the court below noted that the plaintiff alleged that she was "stonewalled" by her supervisor, and that she had denied making any statements that she was unable to work in any position involving human contact. The court further noted that "since the defendants [sic] had stopped her from ascertaining whether any appropriate positions were available, she was effectively prevented from benefitting from the Citibank policy that was applied to all of its other disabled employees with more than ten years experience." The lower court then concluded that pursuant to Citibank's own employee guide the plaintiff was "entitled to seek a return to the 'same or suitable' job with Citibank."

We disagree, and reverse. For the reasons set forth below we grant summary judgment to the defendant.

In order to state a prima facie case of employment discrimination due to a disability under both New York's Executive Law and the City's Administrative Code, the plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated. (Matter of McEniry v Landi, 84 NY2d 554, 558, 644 NE2d 1019, 620 NYS2d 328 [1994]; see Timashpolsky v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 306 AD2d 271, 272, 761 NYS2d 94, 96 [2d Dept 2003], lv denied 1 NY3d 507, 776 NYS2d 223, 808 NE2d 359 [2004].) The term "disability" is defined as "physical, medical or mental impairments that 'do not prevent the complainant from performing in a reasonable manner the activities involved in the job.' " (Pembroke v New York State Off. of Ct. Admin., 306 AD2d 185, 185, 761 NYS2d 214 [1st Dept 2003], quoting Executive Law § 292 [former 21].)

It is well-established that the statutory duty of a New York employer under New York's Human Rights Law is to "provide reasonable accommodations to the known disabilities of an employee . . . in connection with a job or occupation sought or held." (Executive Law § 296 [3] [a].) Further, "reasonable accommodation" is defined as actions taken by employer which "permit an employee . . . with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held . . . provided, however that such actions do not impose an undue hardship on the business." (Executive Law § 292 [21-e].) New York City's Human Rights Law requires that an employer "shall make reasonable...