New York Appellate Division Overturned Grant of Summary Judgment to Emblem Health Services on Disability Discrimination Claims Brought Under New York City Human Rights Law

In Watson v Emblem Health Servs., the Appellate Division First Department overturned the lower court’s decision to grant summary judgment to the employer on their disability discrimination claim under the New York City Human Rights Law. In that case, the court held:

“giving plaintiff the benefit of all favorable inferences which may reasonably be drawn, we conclude that she proffered sufficient evidence to raise a triable issue of fact as to whether the reason put forth by defendant for terminating her employment was merely pretextual and that the grant of summary judgment in defendant’s favor was not warranted.”

In this case, the employer asserted that it terminated the employee while she was on medical leave recovering from a brain tumor because she failed to file for short term disability within 10 days as the employer had instructed by telephone. However, the court found that the evidence before it raised an issue of fact as to whether the stated reason for termination was pretext:

“Defendant argues that it met its prima facie burden of establishing a nondiscriminatory motive for its actions by offering evidence that it terminated plaintiff’s employment because she did not promptly file a disability claim with the Hartford, as directed. Defendant maintains that although the Hartford may have given plaintiff confusing information about whether she could file a claim later, that phone call was not reported to defendant, and that when defendant decided to terminate her employment, it relied on the Hartford’s representation that no claim had been filed. However, when viewed in the light most favorable to plaintiff, the evidence in the record raises a material issue of fact as to whether defendant’s stated reason for terminating her employment was a pretext and whether defendant failed to engage in an interactive process and reasonable accommodation analysis prior thereto (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 827 [2014] [the NYCHRL generally precludes summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee’s request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation]).

There is no question that defendant was apprised of plaintiff’s medical condition and her need for medical leave. The record establishes that in June 2011, plaintiff told her supervisor that she would be out sick until July 10 due to the recurrence of her cerebral tumors. On July 8, 2011, she advised the supervisor, and an H.R. officer shortly afterwards, that she was still ill, and requested additional time to convalesce as a reasonable accommodation of her medical condition.

Defendant’s response was to have an H.R. officer advise plaintiff that she needed to file a disability claim to be paid. However, the H.R. officer did not tell plaintiff that her employment would be terminated if she did not file the claim within 10 days. While defendant’s Leaves of Absence Guide summarizes leave policies that an employee must follow, and warns of the possibility of discharge, it does not specify a time frame within which a claim must be filed with the Hartford.

Moreover, the record, including telephone records and the statements of plaintiff and her friend, supports plaintiff’s claim that she did attempt to file a claim with the Hartford, defendant’s agent, upon being advised by defendant to do so. While defendant claims that it did not know about this, its H.R. officer admitted during her deposition that, in response to her inquiry, the Hartford acknowledged that it would tell an employee that he or she could call at a later date when they needed to obtain the necessary information in order to file a claim.

Furthermore, one may reasonably question how advising plaintiff to file for private disability benefits to get paid would fulfill defendant’s legal obligation to “hold a constructive dialogue about the possibility of a reasonable accommodation” (Jacobsen, 22 NY3d at 838 n 2) and whether giving an employee suffering from a brain tumor a mere 10 days to file a disability claim before firing her was reasonable.

Significantly, no effort was made by anyone at defendant to contact plaintiff during this short period of time to apprise her of the sudden precariousness of her position, even though such efforts could have been made. While the discharge letter stated that plaintiff was on unapproved leave since July 1, plaintiff was not told to contact the Hartford until July 8, and received{**158 AD3d at 185} no written notification or warning that her leave was unapproved.

Defendant’s actions after terminating plaintiff also cast doubt on its stated reason for plaintiff’s discharge. Plaintiff was by all accounts a good employee who had an unblemished record and reached her performance goals. Nevertheless, defendant refused to reinstate plaintiff after she informed it that its statement in the termination letter that she never contacted the Hartford was incorrect, and after she filed an application and was ultimately approved for FMLA leave for the period June 20, 2011, to July 20, 2011. Defendant also altered her termination date so that it would fall outside the legally protected FMLA period. Moreover, the record contains numerous emails in which derogatory comments were made about plaintiff and her medical condition and her need for time off to recover. This includes comments such as “[a]pparently, the West Indies is nice this time of year,” and accusations that plaintiff was not being treated for her condition in June and July 2011 despite the fact that defendant had received medical documentation concerning such treatment.

Given this evidence of a possible pretextual motive, defendants’ motion for summary judgment should have been denied (see Duckett v New York Presbyt. Hosp., 130 AD3d 473 [1st Dept 2015]).

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