Opinion
99 Civ. 4693 (TPG) 88946
August 22, 2003
OPINION
Plaintiff Carlton Porter, Jr. claims that defendant New York University School of Law ("NYU") wrongfully terminated his employment following a work-related back injury. Porter brought this lawsuit against NYU, Frank Conti, and Leonard Pisano. Conti and Pisano were plaintiff's supervisors at NYU.
Plaintiff asserts causes of action for failure to restore him to his position as a security guard following medical leave, in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2612 et seq., and for disability discrimination in violation of the New York Human Rights Law, N.Y. Executive Law § 296(1)(a), and the New York City Administrative Code, § 8-107(1)(a).
Defendants NYU and Conti move for summary judgment claiming that plaintiff's claims are barred by their respective statutes of limitations. They also argue that, even if the claims are not time-barred, they present no triable issues of fact. The court has examined both the statute of limitations issues and the merits. Defendants are entitled to summary judgment on all issues.
It should be noted that NYU states that Pisano does not join in the present motion. Apparently, Pisano left NYU's employ in 1996. NYU claims that there is no evidence that Pisano has been served with a complaint. Porter's brief is silent on this issue. Court records indicate that a complaint was served on Pisano on July 8, 1999 by delivering a copy of the summons and complaint to a person authorized to accept service for NYU. A copy was also mailed to Pisano at NYU. NYU previously submitted both an Answer and a Local Rule 1.9 Statement on behalf of all defendants on July 23, 1999. Counsel for NYU has repeatedly stated in previous correspondence to the court that it represents the defendants. Summary judgment should be granted for all defendants and the case dismissed.
Facts
Porter began work as a security guard at NYU in August 1993. It is apparent from work records submitted by defendant that Porter was warned on several occasions before his injury about incidents of tardiness and absenteeism. Porter disputed those incidents, and no disciplinary action appears to have been taken with regard to them. The present case concerns incidents that occurred after Porter injured his back in January 1995. NYU dismissed Porter on July 2, 1996 citing Porter's alleged abuse of sick leave and, secondarily, his allegedly poor attendance. Porter argues that he was entitled to medical leave under the FMLA. He contends that the real reason for his dismissal was discrimination against him on account of his alleged disability, caused by his injury. It is therefore necessary to discuss in some detail both his work record following this injury and his application for FMLA leave.(1) Plaintiff's Work Record
On January 13, 1995 Porter suffered a back injury after falling at work. He was sent from NYU's health center to St. Luke's Hospital, where an emergency room doctor examined him. As a result of his injuries, he did not immediately return to work.
Exactly when Porter returned to work is unclear. Records indicate that he received worker's compensation benefits from the date of the injury until April 12, 1995. Porter states in his affidavit that he returned to work on that date. Internal memoranda between Conti and Rinko Hemnes, NYU's human resources manager, conflict with the worker's compensation records and Porter's affidavit. One memorandum dated April 19, 1995 indicates that Porter returned from sick leave on March 9, 1995 but had accumulated numerous absences since his return.
On April 23, 1995 Porter again stopped reporting to work, apparently on the advice of his doctor. NYU's records indicate that he received worker's compensation until he returned to work on May 24, 1995. No medical records have been submitted by the parties regarding this period of time. Porter's doctor sent NYU a note dated May 22, 1995 that stated: "Mr. Carlton Porter has been under my care for the past month. He has improved greatly and can return back to work May 23, 1995 with no limitations. He will still be receiving treatment 3 x week." This note was followed by a second note dated May 24, 1995 that stated: "Mr. Cariton Porter is able to return back to work today May 24th 1995. His diagnosis is low back pain and para spinal muscle spasm. His prognosis has improved greatly."
On June 16, 1995 Pisano, the Associate Director for NYU's facilities, wrote to Porter. This letter is at the root of Porter's claim of disability discrimination. Porter contends that it is evidence of ongoing discrimination against him that culminated in his termination. In relevant part, the letter said:
It has been brought to my attention that your attendance has not improved. Your record indicates you have used all your allotted sick time and vacation time. . . . All absences since your return from disability must be substantiated by a medical doctor's report attesting to your inability to come to work and perform your duties. I must receive this report no later than Friday, June 23, 1995. Failure to produce this documentation will result in disciplinary action due to abuse of sick leave.
Porter replied in a long letter dated June 23, 1995. Plaintiff stated that he had been "placed on disability" from April 23, 1995 "after sustaining a back injury while on duty." This appears to be a reference to Porter's injury in January. Porter stated that his disability leave ended on May 24, 1995 and that it was therefore inappropriate to count his accrued vacation time against that period of absence. Plaintiff also contested other absences after May 24 that Pisano alleged in his letter. No disciplinary action appears to have resulted from this exchange and it appears that plaintiff continued to work in his regular capacity and without incident through the remainder of 1995.
(2) Plaintiff's FMLA Application
Sometime in 1996 Porter began to visit a chiropractor, Dr. Matthew Pantofel. Porter states that he re-injured his back while at work on March 18, 1996. It is unclear whether Porter's chiropractic visits preceded this new injury or were prompted by it. On March 27, 1996 plaintiff ceased reporting to work and again collected worker's compensation. Records indicate that plaintiff received worker's compensation until June 4, 1996.Porter's worker's compensation benefits were cut off on that date because a medical examination showed him fit to return to work. This same medical examination was also used to evaluate an application Porter made for medical leave under the FMLA. The details of the application are as follows.
On April 10, 1996 Porter submitted a note from Dr. Pantofel to NYU. The note reads in full:
Carlton Porter was in my office today for treatment of injuries sustained on 1-13-95. He continues to come in for treatment every day. At this time he is unable to work until further notice.
There is some dispute about how Porter submitted this note to NYU, but no dispute that NYU received it. Porter states that he gave the note to his immediate supervisor, Sergeant Joseph Quinlivan. NYU has submitted a declaration by Quinlivan in which he states that he does not recall receiving anything from Porter. A declaration has also been submitted for Margaret Beattie, a benefits coordinator for NYU. She states that Porter sent the letter by fax. Beattie also states that she spoke to Porter by phone that same day. Such a conversation is corroborated by handwritten notes dated April 10 that Beattie apparently made following the call. In any event, plaintiff submitted the letter to NYU.
According to her notes, Beattie also spoke by phone with Porter on the following day, April 11. Her notes state:
I did tell him it appears that letter was not adequate for purposes of establishing his current medical/disability status. Told him Risk Mgt. must receive full detailed report from physician and to call P. Lazarus at Risk asap for further instructions, etc.
(Emphasis in original.) "Risk Mgt." refers to Risk Management Planning Group, NYU's worker's compensation insurance carrier. Peggy Lazarus is an employee of Risk Management Planning Group. Porter does not refer to this conversation in his statement of issues of material facts in dispute.
Beattie instructed NYU's human resources manager, Rinko Hemnes, to send Porter an "FMLA Kit" and such a kit was sent. The kit contained a Request for Leave of Absence form, Certification of Physician or Practitioner form, a summary of FMLA rights, a set of instructions and the FMLA statutory definition of a "serious health condition." The court has been provided copies of these forms but not of the general instructions.
On April 12, 1996 Conti wrote to Porter to confirm that he had "notified the University's Benefits Office of your need to take medical leave due to a serious medical condition that makes you unable to perform the essential functions of your job." The letter directly referred to the FMLA and directed plaintiff as follows:
Please complete Section 1 and sign the enclosed Request for Leave of Absence, attach the Certification of Physician or Practitioner completed and signed by your attending Physician/Practitioner, and return to me by Monday, May 6, 1996. (The note from your practitioner faxed to the Benefits Office does not contain the probable duration of condition and detailed regimen of treatment to be prescribed, and is deemed insufficient by the Benefits Office as verification of your disability.)
The letter further stated that Porter would have to notify NYU prior to each injury-related absence unless he provided notice of the specific period his physician advised him to remain away from work.
On May 8, 1996 Conti sent Porter a second letter that reiterated these instructions. The letter further warned that "Without these forms, we will not be able to process your request for leave, and this will leave us with no choice but to treat your absence as unauthorized, and to terminate your employment."
On May 15, 1996 plaintiff submitted the Request for Leave of Absence and the Certification of Physician or Practitioner. However, Porter left the Request for Leave of Absence form incomplete. He did not indicate the reason for his requested FMLA leave from among the options listed on the form. The Certificate of Physician or Practitioner is signed by both plaintiff and his chiropractor and dated May 15, 1996. A box was marked indicating that plaintiff was unable to perform work of any kind. The date plaintiffs condition commenced was given as January 13, 1995. The probable duration of the condition was stated to be three to six months. A regimen of chiropractic treatment was prescribed over the course of 20-28 weeks. Porter does not appear to have sent the "full, detailed report" that Beattie requested from his physician on April 11.
On May 16, 1996 Conti informed plaintiff by letter that "the University does not consider the information provided by your chiropractor on the Certification of Physician or Practitioner to be satisfactorily substantiating your inability to perform the essential functions of your job." The letter informed plaintiff that a physical examination by a different chiropractor had been scheduled for him. The letter further stated that approval of Porter's FMLA application would depend on that examination:
If we deem the report from the Risk Management to be satisfactorily substantiating your inability to perform the essential functions of your job, your leave that started on March 19, 1996 will be approved for the period of up to 12 weeks as your FMLA (Family Medical Leave Act) entitlement.
Porter underwent a physical examination on June 4, 1996 by Dr. Charles Sallahian. Sallahian was a chiropractor retained by Risk Management Planning Group. Dr. Sallahian's report stated that Porter was fit to return to his duties as a security guard.
At his deposition, Porter admitted to having received a copy of this report. He also received a telephone call from Lazarus at Risk Management. Porter states in his affidavit:
On June 6, 1996, 1 received a call from Ms. Peggy Lazarus from Risk Management Planning Group. She told me that Dr. Sallahian determined that I could return to work. In addition, she informed me that my Worker's Compensation benefits would cease due to the report. In this conversation I explained to Ms. Lazarus that my doctor, Dr. Pantofel, had advised me differently. Ms. Lazarus told me that I could submit more documentation if I wished, to substantiate my claim. She never mentioned to me the status of my FMLA claim or the final determination by NYU not to approve my leave. Ms. Lazarus never spoke to me about FMLA or my claim. On June 20, 1996, I faxed Dr. Pantofel's report to Lazarus.
On June 20, Porter faxed Lazarus the original Certification form completed by Dr. Pantofel, which NYU had already received with Porter's application. Porter states that despite frequent telephone messages left for Lazarus, his calls were not returned. NYU has submitted declarations by Conti and Hemnes saying that Porter did not return their calls to them.
Following the June 4 medical examination, Porter did not return to work or submit any new documents to support his FMLA claim. On July 2, 1996 plaintiff received a termination letter from Conti. It reads in full:
This is to inform you of our decision to terminate your employment effective today due to your inability to return to work from your sick leave. Your prior record of attendance was also taken into consideration.
Plaintiff filed a grievance with his union. On the basis of a collective bargaining agreement, the matter was sent to arbitration. On May 28, 1998 the arbitrator held that he lacked jurisdiction to decide the matter upon its merits because the collective bargaining agreement had expired on June 30, 1996, two days prior to plaintiff's letter of termination.
Although the arbitrator briefly summarized the facts of the matter in his opinion, it would be inappropriate to utilize his record. It is unclear if the arbitrator relied on the same or similar submissions to compile his record as were submitted in this litigation. The arbitrator stated that "there is little dispute about the facts of the case." However, in briefing this motion plaintiff has submitted a detailed statement of material facts in dispute, suggesting that such an observation may no longer be accurate. The court should make its own findings of fact.
Discussion
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is the moving party's burden to show that no genuine factual dispute exists. Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). "When ruling on a summary judgment motion, a court must construe the facts in the light most favorable to the nonmovant and must resolve all ambiguities and draw all reasonable inferences against the movant." Byam v. Barnhart, 324 F.3d 110, 117(2(1 Cir. 2003).(1) The FMLA Claim (a) Statute of Limitations
The statute of limitations for violation of rights protected by the FMLA is two years after the date of the last event constituting the alleged violation, or three years after the date of the last event constituting a "willful" violation of section 2615 of the FMLA. 29 U.S.C. § 2617(c). Section 2615 makes it unlawful for any employer to interfere with an employee's exercise of leave or to discriminate against an employee for opposing such interference. 29 U.S.C. § 2615. The word "willful" is not defined in the statute. However, both parties refer to McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988), in which the Supreme Court defined the term as used in the statute of limitations for the Fair Labor Standards Act to mean an employer who "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute."
Porter alleges that NYU willfully interfered with his application for medical leave under the FMLA. Porter argues that his lawsuit, filed June 29, 1999, is timely because it was filed within three years of the last event constituting the alleged violation, his termination on July 2, 1996. Porter alleges that NYU willfully violated his attempts to secure FMLA leave in three ways: (1) NYU failed to explain why his application was insufficient and did not permit him to submit more materials to support it; (2) NYU failed to schedule a third medical examination for him; (3) NYU failed to notify him of the status of his FMLA application before terminating him.
These allegations all relate to certain procedures that an employer must follow under the FMLA to determine an employee's application for leave. The employer may require an employee to support his request for leave with certification issued by his health care provider. 29 U.S.C. § 2613(a). If the employer adopts such a requirement, the certification must state the date on which the serious health condition commenced, its probable duration, medical facts regarding the condition, and that the employee is unable to perform his job. 29 U.S.C. § 2613(b). A Department of Labor regulation describes an employer's responsibility to its employee regarding such certification:
At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification. The employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency.29 C.F.R. § 825.305(d). The certification may be corroborated by the opinions of other health care providers approved by the employer:
In any case in which the employer has reason to doubt the validity of the certification provided [by the employee], the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer . . .29 U.S.C. § 2613(c)(1). The FMLA also provides for a third medical opinion to resolve disputes:
In any case in which the second opinion . . . differs from the opinion in the original certification provided [by the employee], the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider . . .29 U.S.C. § 2613(d)(1). If a third opinion is obtained, it "shall be considered to be final and shall be binding" on the employer and employee. 29 U.S.C. § 2613(d)(2).
There is no basis for Porter's first allegation, that NYU failed to explain why his application was insufficient and did not permit him to submit more materials to support it. NYU met all of its obligations to assist Porter in his application for FMLA leave. Porter sought to begin the process on April 10 by faxing a note from his chiropractor to NYU. On April 11, NYU told Porter by phone why the doctor's note was insufficient to justify FMLA leave. A "full, detailed report" was requested by NYU. NYU promptly sent Porter an FMLA application that included a certification form for his doctor to complete and general instructions. NYU sent a letter dated April 12, which again explained in writing that the chiropractor's note had been deemed insufficient to verify his alleged disability, and that it lacked information on the probable duration and treatment of his condition. On May 8, NYU advised Porter in writing of the potential consequences, including termination, of his failure to provide adequate certification.
On May 16, the day after Porter submitted his FMLA application, NYU sent him a letter stating that his Physician's Certification did not provide information showing that Porter could not perform his job. As noted above, although Porter's doctor certified him unable to work, this certification stated that Porter's condition commenced in January 1995 and had a probable duration of three to six months. However, the certification was submitted seventeen months after the condition commenced, in May 1996. NYU, exercising its right under 29 U.S.C. § 2613(c)(1) to obtain a second medical examination, scheduled such an exam for June 4. NYU told Porter that approval of his application was contingent on the results of this examination.
As Porter stated in his affidavit, he was told by telephone that the medical examination determined that he could return to work. In addition, he was told that his worker's compensation benefits would cease. When Porter stated that his own doctor had given him different advice, he was informed that he could submit more documentation to substantiate his claim if he so desired. Although Porter states that no mention was made of his FMLA claim during this telephone call, he had already been informed that his application would be granted only if the medical examination showed him unfit to work. Each party accuses the other of failing to return subsequent telephone calls. However, there is no evidence that Porter attempted to submit additional documentation to NYU beyond faxing his previously submitted certification a second time. Viewed in the light most favorable to plaintiff's claims, NYU cannot be said to have willfully violated plaintiff's right to be advised "whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency." 29 C.F.R. § 825.305(d).
Plaintiffs second contention, that NYU was obliged to obtain a third medical examination to resolve conflicts between the certification that Porter submitted and the June 4 medical examination, is without basis in law.
As noted above, section 2613 of the FMLA states that an employer "may require" a second or third medical opinion. The Fourth, Seventh, and Eighth Circuits have all held that this language is permissive, not mandatory, and that therefore an employer is not required to seek a second, let alone a third opinion, before challenging the validity of an employee's certification. Rhoads v. Federal Deposit Ins. Corp., 257 F.3d 373, 386 (4th Cir. 2001) ("Because the term 'may' is permissive, the plain language of the statute indicates that an employer who questions the validity of a certification has the option of seeking a second and third opinion, without being required to do so."); Stekloff v. St. John's Merce Health Sys., 218 F.3d 858, 860 (8th Cir. 2000) ("We do not read § 2613(c)(1) as requiring an employer to obtain a second opinion or else waive any future opportunity to contest the validity of the certification."); Levine v. Children's Museum of Indianapolis, Inc., No. 02 Civ. 3013, 2003 WL 1545156, at *2 (7th Cir. 2003) (unpublished order holding "may require" to be permissive, not mandatory language).
Porter cites Sims v. Alameda-Contra Costa Transit District, 2 F. Supp.2d 1253, 1263 (N.D. Cal. Apr. 9, 1998). That district court determined the phrase "may require" to be ambiguous. The court therefore looked to the legislative history, policy objectives, and structure of the FMLA to interpret the language as mandatory. No circuit court that has examined this section of the statute, however, has found any such ambiguity. Thus, there is no reason to reach beyond the plain language of the statute for an alternative interpretation. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 461-62 (2002).
NYU did not willfully violate Porter's right to seek leave by seeking a second medical opinion, but not a third one.
Plaintiff's third contention, that NYU failed to notify Porter about his FMLA status before he was terminated, is also meritless. On May 16, NYU told Porter that his application for FMLA leave would depend on the results of his examination by Dr. Sallahian. On June 6, NYU told Porter by phone that the examination showed him fit to return to work. Porter stated at his deposition that he received a copy of Sallahian's report and understood it to conclude that he was able to return to work. As noted above, although Porter alleges that no mention was made of his FMLA application during the June 6 call, he had previously been informed that his application depended on the results of this examination. NYU cannot be said to have willfully failed to notify Porter of the status of his application.
Porter fails to demonstrate any "willful violation" by NYU of his rights under the FMLA that would entitle him to the Act's three-year statute of limitations. Porter's cause of action under the FMLA is barred by the statute of limitations.
(b) Violation of the FMLA
Although the FMLA claim is barred by the statute of limitations, the court will examine the claim on its merits, and here again defendants are entitled to dismissal.In relevant part, the FMLA provides that ". . . an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The parties do not dispute that Porter is an eligible employee under the statute. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care in specified institutions or continuing treatment by a health care provider. 29 U.S.C. § 2611(11); 29 C.F.R. § 825.114. On return from such leave, an employee is entitled to return to his original position of employment or an equivalent position. 29 U.S.C. § 2614(a)(1).
Porter alleges that NYU "wilfully refused to restore plaintiff to his original position" of employment in violation of 29 U.S.C. § 2614(a)(1). Section 2614, as noted above, provides that any eligible employee is entitled to be restored to his original or equivalent position of employment after taking leave. Porter did not take FMLA leave. He is therefore not entitled to be restored to his position.
Porter's complaint might be interpreted to allege that he was improperly denied FMLA leave to which he was entitled. However, Porter offers no evidence challenging the results of the June 4 medical exam that found him able to return to work. Porter's brief and his Rule 56.1 statement state only that he informed Ms. Lazarus during their June 6 telephone conversation that his own doctor had "advised me differently." By his own admission, Porter was told he could submit further documentation to substantiate this claim. He never did so. In opposition to this motion for summary judgment, Porter still does not provide any evidence to contest the conclusion of the most recent doctor to examine him that he was fit to work and thus ineligible for FMLA medical leave. Viewed in the light most favorable to Porter, his vague assertion is inadequate to meet Porter's burden to "set forth specific facts showing that there is a genuine issue for trial." F.R.Civ.P. 56(e); Celotex, 477 U.S. at 324.
Porter instead alleges only that NYU violated the FMLA by failing to notify him of deficiencies in his application and by failing to provide a third medical examination. These arguments have already been considered above and are without merit.
(2) The State Law Discrimination Claims (a) Statute of Limitations
Porter alleges that he was threatened with disciplinary action and then terminated on account of a disability that resulted from his injury. Porter's lawsuit for disability discrimination is brought under the New York Human Rights Law, N.Y. Executive Law § 296(1)(a), and the New York City Administrative Code, § 8-107(1)(a). Both statutes are governed by a three-year statute of limitations that begins to run from the time the plaintiff first becomes aware of the discriminatory act of which he complains. N.Y. CPLR § 214(2) (McKinney Supp. 2002).Porter alleges that his termination was "a continuation of defendants [sic] policy of harassment and discrimination" towards him. Porter alleges that the first act of discrimination on account of his disability was the June 16, 1995 letter from his supervisor, Leonard Pisano, which threatened disciplinary action for abuse of sick leave. This act took place more than three years prior to the filing of this lawsuit. However, Porter argues that the statute of limitations should be extended under the "continuing violation" doctrine because his termination on July 2, 1996 was the culmination of ongoing discrimination.
Under the continuing violation doctrine, "if a plaintiff has experienced a continuous practice and policy of discrimination, . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal quotation marks omitted). A continuing violation may be found where "specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. Porter argues that because his July 2 letter of termination referred both to his inability to return to work from sick leave and to his prior record of attendance, it was an act of discrimination related to the June 1995 letter concerning Porter's alleged abuse of sick policy. These two letters are the only instances alleged by Porter to constitute a policy by NYU of harassment and discrimination against him.
The June 1995 letter cannot be considered an instance of disability discrimination. The letter merely notified Porter that repeated absences from work "must be substantiated by a medical doctor's report attesting to your inability to come to work and perform your duties." The letter warned Porter that "[f]ailure to produce this documentation will result in disciplinary action due to abuse of sick leave." As noted above, Porter responded with a lengthy letter in response that asserted that his absences were proper. No disciplinary action resulted from the exchange and Porter worked without incident the remainder of that year. Thus, even were the letter to be viewed as an instance of disability discrimination, it could hardly be considered to have continued "unremedied." Fitzgerald, 251 F.3d at 359. Furthermore, these events are too isolated in time to constitute a "continuous practice and policy of discrimination." See e.g. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (refusing to apply continuing violation doctrine to incidents of sexual harassment that occurred twice in 1988, once in 1989 and once in 1990).
The continuing violation doctrine is inapplicable to plaintiff's allegations of disability discrimination. Plaintiff's causes of action for disability discrimination are barred by the statute of limitations.
(b) Disability Discrimination
Again the court will examine the merits, even though the state law claim is time-barred.
The New York Human Rights Law on disability discrimination states, in relevant part:
It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of the . . . disability . . . of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
N.Y. Exec. Law § 296(1). Similarly, the New York City Administrative Code states:
1. Employment. It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived . . . disability . . . of any person to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.
N.Y.C. Code § 8-107.
The meaning of "disability" under both statutes is limited. "In order to be within the class of persons covered by either the state or the city provision, an employee must have a certain degree of disability, but he still must be able to perform the duties of his particular job." Keller v. McGraw-Hill, No. 99 Civ. 3110, 2002 WL 31016647, at *8 (S.D.N.Y. Sept. 10, 2002) (Griesa, J.). The New York Human Rights Law in the form it existed at the time of these events limited the meaning of the term "disability":
[I]n all provisions of this article dealing with employment, the term shall be limited to disabilities which do not prevent the complainant from performing in the job or occupation sought or held.
N.Y. Executive Law § 292(21). In 1998, a clause was added that requires the employer to take into account a reasonable accommodation for an employee's disability when determining whether the employee can perform his job. The New York City Code at the time of these events mirrored the limitation found in the state law, but included the reasonable accommodation requirement:
Affirmative defense in disability cases. In any case where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job or enjoy the right or rights in question.
N.Y. Code § 8-107(15)(b).
Porter contends that he was unable to perform any work whatsoever at the time NYU dismissed him. Porter sought no reasonable accommodation of his disability that would allow him to return to work. Following the medical examination, Porter did not return to work, rendering any attempt at reasonable accommodation of his alleged disability futile. Indefinite leave is not a reasonable accommodation. Guzman v. ARC XVI Inwood. Inc., No. 97 Civ. 0031, 1999 WL 178786, at *9 (S.D.N.Y. Mar. 30, 1999). Porter makes no allegations regarding accommodation in his complaint or subsequent submissions to the court. He is not part of the class of persons covered by the statutes.
Viewed in the light most favorable to Porter, there is no triable issue of fact as to whether Porter even suffered a disability at the time of his termination. Porter argues that his worker's compensation records established that Porter suffered from a physical impairment as defined in the statute. However, Porter was terminated after a medical examination showed him fit to return to work. This was the reason NYU stopped paying worker's compensation benefits to Porter. The sole purpose of that examination was to determine whether Porter continued to suffer from his earlier injury. Porter provides no contrary evidence that he suffered a disability at the time of the examination or at the time of his termination.
However, as noted above, even if Porter had provided evidence that he suffered from a disability at the time of his termination, he does not have a cause of action under either statute. Porter contends that he was unable to work at all.
Finally, there is also no triable issue of fact to support Porter's assertion of a discriminatory reason for his termination. In the intervening month between the June 4 examination and the July 2 letter of termination, Porter did not appear at work, explain his absence, or provide any new documentation to substantiate his claim for medical leave. Prolonged unexcused absence from work is obviously a legitimate, nondiscriminatory reason for termination. Porter does not meet his burden of showing that, more likely than not, NYU's decision was at least in part motivated by discrimination.
Porter's memorandum of law in opposition to defendant's motion for summary judgment appears to allege a new cause of action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. No cause of action under the ADA was pled in plaintiff's complaint. Because the elements of disability discrimination under the state and city statutes broadly track the ADA, it may be the case that Porter has used the ADA as a vehicle to support his already pleaded causes of action. However, Porter nowhere expresses this intention in his brief. To the extent that Porter may be pleading a new cause of action, it should be disregarded as improperly set forth in his opposition papers. Fed.R.Civ.P. 8; Beckman v. U.S. Postal Service, 79 F. Supp.2d 394, 407 (S.D.N.Y. Jan. 12, 2000) ("Because a failure to assert a claim until the last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment.") (internal quotation marks omitted).
Porter was not subjected to illegal discrimination under either the New York Human Rights Law or the N.Y.C. Administrative Code.
Conclusion
For the reasons stated above, plaintiffs cause of action under the Family and Medical Leave Act is barred by the statute of limitations. Plaintiff's causes of action under the New York State Human Rights Law and the New York City Administrative Code are also barred by the statute of limitations. But even on the merits, plaintiff's claims present no triable issues of fact. Defendant's motion for summary judgment should be granted in its entirety. The action is dismissed.
SO ORDERED.