Scalera v. Electrograph Sys., Inc.

• Decision Date: 26 March 2012
• Docket Number: No. CV 08–50(AKT).,CV 08–50(AKT).
• Citation: 848 F.Supp.2d 352,26 A.D. Cases 456
• Parties: Mary Kay SCALERA, Plaintiff, v. ELECTROGRAPH SYSTEMS, INC., Kathy Koziol, Rose Ann Gordon, and Alan Smith, Defendants.
• Court: U.S. District Court — Eastern District of New York

848 F.Supp.2d 352

26 A.D. Cases 456

Mary Kay SCALERA, Plaintiff,

v.ELECTROGRAPH SYSTEMS, INC., Kathy Koziol, Rose Ann Gordon, and Alan Smith, Defendants.

No. CV 08–50(AKT).

United States District Court,

E.D. New York.

March 26, 2012.

Andrew Dwyer, The Dwyer Law Firm, L.L.C., Newark, NJ, Michael Douglas Palmer, Matthew David Kadushin, Joseph Herzfeld Heter & Kirschenbaum LLP, New York, NY, for Plaintiff.

Timothy P. Coon, Thomas A. Leghorn, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY, for Defendants.

MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, United States Magistrate Judge:

I. Preliminary Statement

Plaintiff Mary Kay Scalera (“Scalera”) brings this disability discrimination action against Defendants Electrograph Systems, Inc. (“Electrograph”), Kathy Koziol (“Koziol”), Rose Ann Gordon (“Gordon”), and Alan Smith (“Smith”) (collectively, “Defendants”) for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. and the New York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 290, et seq. Scalera specifically alleges that Defendants failed to reasonably accommodate her disability when they failed to install (1) a higher toilet seat in the women's restroom; and (2) a hand rail at the side entrance of Electrograph's Hauppauge office building.

Defendants now move for summary judgment on four separate grounds. For the foregoing reasons, Defendants' motion for summary judgment is DENIED.

II. Background

The following facts are drawn from the parties' Rule 56.1 Statements and are construed in the light most favorable to the non-moving party. See Capobianco v. New York, 422 F.3d 47, 50 n.1 (2d Cir.2005);Woodman v. WWOR–TV, Inc., 411 F.3d 69, 75 (2d Cir.2005). Unless otherwise noted, the following facts are not in dispute.

A. Parties

Defendant Electrograph was a New York Corporation which employed approximately 200 employees nationwide. Defs.' 56.1 Stmt. ¶¶ 3–4. However, Electrograph liquidated its assets and no longer functions as a viable enterprise. Id. ¶ 6. During all relevant time periods, Defendant Smith was the CEO of Electrograph, Defendant Gordon was the Director of Human Resources, and Defendant Koziol was the Director of Operations. Id. ¶¶ 7–8, 12. The Plaintiff was employed by Electrograph as a Systems Programmer Analyst at its Hauppauge office from September 16, 2005, until October 11, 2006. Id. ¶¶ 1–2. Scalera suffers from a genetic disorder called Pompe Disease which severely impairs her ability to walk.¹Id. ¶¶ 16–17. While employed at Electrograph, Plaintiff used a cane to assist with her walking. Id. ¶ 17. There is no dispute that management and other employees of Electrograph were aware of Plaintiff's limited mobility. Id. ¶ 19.

B. Accommodations for Scalera

When Plaintiff was offered the job as a software programmer, she was provided with the opportunity to purchase a chair of her choice. This chair was delivered to Plaintiff's desk prior to her first day of employment. Id. ¶¶ 20–21. Scalera was also permitted to enter and exit though the side entrance of the building since that path minimized the distance she had to walk between her car and cubicle. Id. ¶¶ 22, 27. Plaintiff utilized the side entrance every day she was employed by Electrograph. Id. ¶ 23. Although management advised all employees sometime in October 2005 that they were not permitted to enter or exit the building through the side entrance, Plaintiff requested and received permission from her supervisor, Joe Koos, to continue using it. Id. ¶ 24. Although not asked personally by Scalera, Defendant Gordon as HR Director learned of Plaintiff's request to use the side entrance and approved it as a reasonable accommodation. Id. ¶ 26. Scalera frequently received manual assistance from Electrograph employees, including entering and exiting the building. Id. ¶¶ 36–37.

Scalera also utilized the parking spot closest to the side entrance of the building. Id. ¶ 28. Defendants claim that Plaintiff requested, and was granted, as a reasonable accommodation, the right to use this particular parking spot. Id. ¶ 29. Plaintiff denies this assertion, however, and states that she neither requested the right to use this particular spot nor spoke to anyone at Electrograph about it. Pl.'s 56.1 Stmt. ¶ 28.

Sometime in December 2005, Defendant Koziol had a conversation with Plaintiff and offered to relocate Plaintiff's cubicle to one that was closer to the ladies room.² Defs.' 56.1 Stmt. ¶ 31. This offer was declined by Scalera. Id. Koziol also offered Plaintiff the use of the “executive bathroom” since it was closer to Plaintiff's cubicle. Id. ¶ 32. Koziol initiated a conversation with Gordon and sent an e-mail to Smith in order to secure permission for Plaintiff to use the executive bathroom. Id. ¶ 34. Smith agreed to the request. Id. ¶ 35. While Scalera admits that Koziol offered her the opportunity to use the “executive bathroom,” Plaintiff maintains that she specifically told Koziol that this bathroom would not be an accommodation. ³ Pl.'s 56.1 Stmt. ¶¶ 32–33.

C. Requested Accommodations

During her employment, Plaintiff claims that she requested two accommodations from Defendants: (1) a higher toilet seat in the women's room; and (2) a hand rail for the side entrance of the Electrograph building. Pl.'s 56.1 Stmt. ¶ 39. Plaintiff contends that on two separate occasions in or around December 2005, she made in-person requests to Koziol for a higher toilet seat. Id. ¶ ¶ 39–40. Koziol denies that Plaintiff ever asked her for higher seating in the bathroom. Defs.' 56.1 Stmt. ¶ 33. Other than Koziol, Plaintiff does not allege that she discussed the height of the toilet seats with anyone else at Electrograph. Pl.'s 56.1 Stmt. ¶ 41. Scalera also claims that she requested that a hand rail be installed by the steps at the side entrance sometime in November 2005. Id. ¶ 43. According to Plaintiff, in addition to in-person requests for the installation of a railing, she also e-mailed and called Defendant Gordon about the requested accommodation. Id. Defendant Gordon denies ever being asked about the railing. Defs.' 56.1 Stmt. ¶ 45.

D. The Accident

On July 13, 2006, while exiting the building through the side entrance, Plaintiff fell. Defs.' 56.1 Stmt. ¶ 46. Subsequent to the fall, Plaintiff requested and was granted non-FMLA leave for 12 weeks. Id. ¶ 48. At the end of the 12 weeks, and in accordance with company policy, Electrograph terminated Plaintiff's employment. Id. ¶ 49. On account of her injuries, Plaintiff has been awarded Workers' Compensation. Id. ¶ 50. Plaintiff also receives disability payments from Social Security and long-term disability payments from two insurance companies. Id. ¶¶ 51–52.

III. Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure dictates that a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008). To determinewhether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising from that evidence in the light most favorable to the non-moving party. Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir.2007); Woodman, 411 F.3d at 75.

Where the movant shows a prima facie entitlement to summary judgment, “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir.2006). “[T]he nonmovant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment.” Id.; see also McPherson v. N.Y.C Dep't of Educ., 457 F.3d 211, 215 n. 4 (2d Cir.2006) (“[S]peculation alone is insufficient to defeat a motion for summary judgment.”); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001) (“Even where facts are disputed, in order to defeat summary judgment, the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor.”). Summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Dobbs v. Dobbs, No. 06–CV–6104, 2008 WL 3843528, at *1 (S.D.N.Y. Aug. 14, 2008) (“The Court's goal should be to isolate and dispose of factually unsupported claims.”) (internal quotation marks omitted). However, if “there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.” Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir.1997) (quoting Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir.1997)).

IV. Discussion

In this case, Scalera alleges that the Defendants failed to make reasonable accommodations for her disability when they failed to provide higher seating for a toilet in the women's restroom and failed to install a hand rail at the side entrance. For purposes of this motion, Defendants make the following concessions: (1) Plaintiff is disabled under the ADA; (2) Electrograph was Plaintiff's employer under the ADA and NYHRL since it employed more than 15 people; (3) Electrograph recognized Plaintiff's disability, which it understood to be difficulty with walking; and (4) installing raised seating in the bathroom or a hand rail would not have posed an undue financial hardship on Electrograph.

Notwithstanding these concessions, Defendants contend that ADA liability is...