Opinion
99 Civ. 1576 (RCC)
February 13, 2002
Opinion Order Adopting Report Recommendation
Plaintiff Angelo Donofrio ("Plaintiff" or "Donofrio") brings this employment discrimination action against his former employer, Defendant New York Times ("Defendant" or "the Times"), pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), the New York State Human Rights Law, N.Y. Exec. Law § 296, and the New York City Administrative Code § 8-107. The Times moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. In a Report and Recommendation ("Report") dated August 24, 2001, United States Magistrate Judge Francis recommended that summary judgment be granted. Plaintiff filed timely objections to the Report. After reviewing the record, the Court adopts the Report and grants summary judgment to the Defendant.
I. Background
Plaintiff began his employment at the Times in 1969 and from the 1980's until his termination, he worked as an administrative clerk in the Advertising Department. In early November 1996, Plaintiff received his annual performance evaluation, which indicated a need for improving his "communication skills," "internal relations" and "commitment to vision and strategy." Plaintiff's Response to Defendant's 56.1 Statement ¶ 4. Plaintiff objected to these criticisms. Id. ¶ 6. On November 7, 1996, Plaintiff did not report to work, citing a viral infection. He returned to work on November 14, but left early on November 15, again citing flu-like symptoms. Id. ¶ 8. Plaintiff claims to have informed his supervisor of his illness a few days later. Id. ¶ 9.
On November 21, the Times sent Plaintiff a letter informing him that before he could receive disability benefits he and his doctor had to complete a Notice and Proof of Disability Form. Plaintiff claims the Disability Form was not included in the letter he received. Id. ¶ 10. On November 26, the Times left a voicemail for Plaintiff on his internal voice mailbox requesting the completed form. Id. ¶ 11. Plaintiff did not respond to this message. Rather, nearly four weeks after his initial absence, Plaintiff's cousin called the Times' Medical Department on December 3, 1996 to explain that Plaintiff was under a doctor's care and would not be able to return to work for four to six weeks. The manager of the Times' Disability Claims department informed Plaintiff's cousin that the alleged disability would have to be documented for Plaintiff to receive disability benefits. Id. ¶ 12. Plaintiff states he was removed from the Times' payroll on December 3, 1996. Id. ¶ 13.
On or about December 5, 1996, Plaintiff's treating psychiatrist, Dr. Livingston, provided Dr. Sheila Horn of the Times' Medical Department with his diagnosis. Id. ¶ 23; Donofrio Aff. Ex. 1. Although not the flu Plaintiff originally complained of, Dr. Livingston reported that Plaintiff suffered from a panic disorder and fear of public places and crowds. Collins Jan. 18, 2001 Aff. Ex. 24. Dr. Horn requested that Plaintiff be examined by the Times Medical Department. Dr. Livingston believed it would be medically acceptable for Plaintiff to be examined by a psychiatrist outside of the Times building since Plaintiff's illness was allegedly exacerbated by contact with the Times' building or employees. Plaintiff's Response to Defendant's 56.1 Statement ¶ 31. Donofrio submitted the required disability form on December 20, 1996, a month after it had been requested. Id. ¶ 30. By letter dated January 27, 1997, the Times confirmed the details of the medical examination,Id. ¶ 34. Plaintiff missed the scheduled examination. Plaintiff eventually met with Dr. Gusmorino on February 18, 1997. Id. ¶ 36. Dr. Gusmorino determined that Plaintiff's symptoms were fabricated and a "highly exaggerated presentation consistent with malingering." Id. ¶ 37; Collins Jan. 18, 2001 Aff. Ex. 30.
After reviewing Dr. Gusmorino's report, the Times arranged for Plaintiff to meet with its labor representative, Mr. Louis Pisano, on April 25, 1997, away from the Times' premises. Id. ¶ 39. While waiting for Mr. Pisano, who was more than an hour late, Plaintiff allegedly suffered a panic attack and was taken to a hospital. Id. The meeting was rescheduled for May 9, 1997. On May 7, Dr. Livingston informed Mr. Pisano that Plaintiff's condition had worsened and he would be unable to attend the meeting due to his mental disorder. Dr. Livingston did not indicate when Plaintiff would be able to attend another meeting. Id; Collins Jan. 18, 2001 Aff. Ex. 24.
In the meantime, in early December 1996, the Times began video surveillance of Plaintiff, due to what its Disability Claims Department considered to be the unusual circumstances of Mr. Donofrio's absence. Defendant's 56.1 Statement ¶¶ 18, 20. Plaintiff's absence was considered unusual because he first complained of the flu, which does not normally require four to six weeks for recuperation, and his absence coincided with the same months in which he had been absent in previous years so that he could design and deliver gift baskets. Id. The video from December 13 depicted Plaintiff carrying gift baskets from his apartment to a van. Id. ¶ 29. Plaintiff does not dispute this and notes that he regularly requested vacation time in December to help a friend's gift basket business. Plaintiff's Response to Defendant's 56.1 Statement ¶ 16. He claims he planned to follow his normal practice in December 1996. Id. ¶ 17. Further, he states that his treating psychiatrist, Dr. Livingston, instructed him that delivering the gift baskets would be therapeutic.
Presumably, as a result of the December 13, 1996 video, Dr. Gusmorino's report and Plaintiff's inability to meet with him, on May 13, 1997 Mr. Pisano notified Mr. Donofrio that he had been discharged from the Times "for violation of the [defendant's] dishonesty policy." Defendant's 56.1 Statement ¶ 46; see also Pisano Letter at Plaintiff's Response to Defendant's 56.1 Statement at Ex. C (outlining Pisano's attempts to meet with Donofrio and notifying Plaintiff of his termination). Specifically, the Times maintained that Plaintiff was lying about having a medical condition in order to devote time to his gift basket business. Further, Pisano stated "even if you suffer from the disability you claim, that disability makes it impossible to continue as an employee of the New York Times." Pisano Letter, Plaintiff's Response to Defendant's 56.1 Statement Ex. C.
Subsequently, on September 28, 1998, Plaintiff filed a discrimination charge with the United States Equal Employment Opportunity Commission (the "EEOC") and, as a result, he received a "right to sue" letter on December 8, 1998. Report at 8. Plaintiff filed a pro se suit in this Court on March 2, 1999, alleging that he had been discriminated against on the basis of his disability, sex, national origin and age. He then retained counsel and amended his complaint to add claims made pursuant to the New York State Human Rights Law and the New York City Administrative Code § 8-107. Amended Compl. at 1. The Times moved for summary judgment and, in response, Mr. Donofrio dropped all but his federal and state claims of discriminatory discharge based on disability.
Magistrate Judge Francis recommended that summary judgment be granted in Defendant's favor. He found that Donofrio failed to establish a prima facie case because he caused the breakdown of the interactive process, which is required to formulate a reasonable accommodation. Plaintiff filed several timely objections to the recommendation because, in his view, Judge Francis did not adequately consider his alleged mental disability. Therefore, pursuant to Federal Rule of Civil Procedure 72, this Court performs a de novo review.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate where the parties' submissions demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994) (stating summary judgment is appropriate in discrimination cases "lacking genuine issues of material fact"). The moving party bears the initial burden of proof on such a motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court must view the facts, and all inferences drawn from those facts, in a light most favorable to the non-moving party. Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157, 160 (2d Cir. 1999). If the moving party meets its burden, then the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Mere "metaphysical doubt" is inadequate; sufficient evidence must exist upon which a reasonable jury could return a verdict for the non-moving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574. 586 (1986).
B. Prima Facie Case
In analyzing a discriminatory discharge claim under the ADA, the Court applies the three part burden shifting analysis outlined in McDonell Douglass Corp. v. Green, 411 U.S. 792, 802-04 (1973); Heyman v. Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999). Plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. The burden then shifts to Defendant to offer a non-discriminatory reason for the dismissal. Finally, the burden shifts back to Plaintiff to demonstrate that Defendant's proffered reason was simply pretextual.
In order to establish a prima facie case, Plaintiff must show that: "(1) [his] employer is subject to the ADA; (2) [he] suffers from a disability within the meaning of the ADA; (3) [he] could perform the essential functions of his job with or without reasonable accommodation; and (4)[he] was fired because of his disability." Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998) (citations omitted);see also Lovejoy-Wilson v. NOCO Motor Fuel, Co., 263 F.3d 208, 216 (2d Cir. 2001).
Neither party disputes that the Times is an employer subject to the ADA or that the disability from which Plaintiff claims to suffer is covered by the ADA. The disagreement arises with respect to Plaintiff's status as a qualified individual with a disability. The ADA defines a qualified individual as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The Times argues that Plaintiff admitted to being completely disabled after November 15, 1996:
Q: Since November of 1996 have you made any efforts to obtain employment?
A: No sir.
Q: And why not?
A: I am permanently and totally mentally disabled from work.
Q: Does that mean that since November of 1996 you can't work in any capacity?
A: That's right.
Q: And that condition has continued from November 1996 to the present?
A: Yes.
October 12, 2000 Donofrio Dep at 14: see also id. at 79 (explaining he was not able to return to work in March 1997); 116-118 (responding that he did not know if he could return to work in May 1997). Further, in May 1997, Dr. Livingston informed Mr. Pisano that Plaintiff would be unable to meet with him for an unspecified time. Collins Jan. 18, 2001 Aff. Ex. 24. Moreover, Dr. Gusmorino, the doctor who performed the independent medical exam, opined that Donofrio was feigning his illness. Collins Jan 18, 2001 Aff. Ex.30. Thus, the Times argues Plaintiff cannot establish a prima facie case because at the time he was terminated he was either unable to work with a reasonable accommodation or not mentally ill at all.
Plaintiff counters that had the Times furnished a reasonable accommodation he would have been able to return to work. Yet, in fact, Plaintiff had nearly six months of leave from November 15, 1996 until he was terminated on May 13, 1997. Further, in May 1997, Plaintiff still could not commit to meeting with the Times' labor representative.
The determination of a reasonable accommodation is based on the particular disability and form of employment and is thus determined by an "interactive process" between the employer and employee. See 29 C.F.R. § 1630.2(o)(3); see also Lovejoy-Wilson, 263 F.3d at 218;Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000), cert. denied, 531 U.S. 931 (2000). The Second Circuit has not ruled on the reasonableness of medical leave as an accommodation under the ADA. Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 199 (S.D.N.Y. 1999). However, "[t]he duty to make reasonable accommodations does not, of course, require an employer to hold an injured employee's position open indefinitely while the employee attempts to recover, nor does it force an employer to investigate every aspect of an employee's condition before terminating him based on his inability to work." Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d Cir. 2000). The employer is required, however, to investigate the employee's request for accommodation and determine its feasibility. Id.
Here, the Times made several attempts to ascertain Plaintiff's condition and investigate his request for unspecified leave before terminating him. The Times first learned of Plaintiff's alleged mental illness nearly four weeks after his initial absence. The Court notes that Plaintiff had worked in the Times building for nearly twenty eight years before suffering the claimed disorder. The Times attempted to accommodate Plaintiff by arranging for a medical examination away from the Times premises and rescheduling it after Donofrio failed to appear. Even after Dr. Gusmorino indicated that he felt Donofrio was feigning his condition and could return to work, the Times made another effort to meet with Plaintiff — away from the Times building — to discuss his condition. Donofrio, on the other hand, has offered nothing to demonstrate that he would be able to do his job other than claim that he would have liked to return to work. Donofrio Dep. at 100-01. As there is no evidence from which a jury could find that Plaintiff would have been able to work with a reasonable accommodation, the Court agrees with the Magistrate that Plaintiff is unable to establish a prima facie case.
C. Remaining Objections
With respect to Plaintiff's other objections — that the Times did not try to communicate with him, that Dr. Gusmorino was an unreasonable choice for performing the independent medical exam and that the Court should exercise supplemental jurisdiction over his state and local claims — the Court finds these unavailing. As explained above, the Times, on several occasions tried to communicate with Plaintiff through his internal voice mail, his cousin, overnight mail and meetings. Moreover, Dr. Gusmorino is a licensed psychiatrist practicing in New York. He was qualified to perform the exam. Finally, there is no reason for the Court to retain jurisdiction over this matter and it declines to do so.
III. Conclusion
For the foregoing reasons, the Court grants Defendant's motion for summary judgment. The Clerk of the Court is directed to close the case.