The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RUDOLPH KORNMANN, :
:
Plaintiff, :
: MEMORANDUM DECISION
-against- : AND ORDER
:
THE CITY OF NEW YORK BUSINESS : 17-cv-2328 (BMC) (SMG)
INTEGRITY COMMISSION; MICHAEL :
DEL PINO; MATTHEW GONZALEZ; :
JOHN CURRY and JOHN AND JANE DOES :
1-10,
:
:
Defendants.
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COGAN, District Judge.
Plaintiff brings this employment discrimination action alleging that his employer denied
him accommodations for his disability, retaliated against him for complaining, and then
constructively discharged him. His claims arise under the American with Disabilities Act, 42
U.S.C. § 12101 et seq. (“ADA”); the New York State Human Rights Law, N.Y. Exec. Law § 296
et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107
et seq. (“NYCHRL”). Defendants, his former employer and supervisors, have moved for
summary judgment. Plaintiff’s requests for reasonable accommodations under the ADA were
not timely exhausted, and I therefore grant summary judgment dismissing that claim. However,
I am denying the motion for summary judgment as to plaintiff’s remaining claims because there
are genuine issues of material fact.
BACKGROUND
Plaintiff worked for defendant, the City of New York Business Integrity Commission
(“BIC”), an anti-corruption agency of the City of New York, for approximately 25 years, the last
15 years of which as a “Computer Associate.” He suffers from chondromalacia, a condition that
erodes cartilage between the joints.
His second amended complaint is mostly a historical rendition of the back and forth
between the parties over the years from 2007-2015 resulting from plaintiff’s efforts to obtain
accommodations for his disabling condition. The only points of consequence prior to 2015 are
that sometime between 2010-2014, plaintiff had filed a complaint with the EEOC claiming
retaliation after requesting a reasonable accommodation; that plaintiff was in frequent
communication with BIC’s Human Resources department during that period complaining about
BIC’s failure to accommodate his disability; and that in January 2015, plaintiff’s direct
supervisor, defendant Michael Del Pino, the IT Director for BIC, had sent an email to other BIC
officials, expressing displeasure at plaintiff’s commitment to BIC “given [plaintiff’s] personal
issues with lateness, excessive use of sick leave and overall dissatisfaction raised through
numerous formal and informal complaints.”
In the parties’ summary judgment submissions, the specifics of those disputes are
referenced only in passing. Instead, both sides focus on a meeting between plaintiff and his
supervisor on November 4, 2015 (the “November 4th meeting), and a follow-on meeting of
November 13, 2015, as a result of which BIC suspended him and initiated the administrative
process for his termination as a city employee. The November 4th meeting occurred at Del
Pino’s request. There, Del Pino “counseled” (human resources-speak for “formally
admonished”) plaintiff for failing to give notice to BIC on three days in October that he was
going to be out. According to BIC’s Time/Sick Leave Policy: “If you take an undocumented
sick leave, you must call your supervisor and Human Resources at least one (1) hour before you
are scheduled for work.” Del Pino told plaintiff that as a result of violation of this policy, Del
Pino was changing plaintiff’s shift from a start time of 10:00 a.m. to 9:00 a.m. Plaintiff claims
he requested a “flex” schedule so that he could come to work later in the day to avoid the
crowded trains, as the inability to get a seat aggravated his chondromalacia. Del Pino denied
plaintiff’s request, and plaintiff told Del Pino that he intended to file a grievance over the
schedule change.
According to Del Pino, plaintiff’s response at the meeting to his reprimand and schedule
change was to say, “I would never do it, but friends of mine have asked me how you don’t just
show up at work with an AK-47 given everything they have put you through.” In this action,
plaintiff denies making any such statement.
The day after the meeting, Del Pino prepared a “counseling memorandum” addressed to
plaintiff that summarized their meeting (the “November 5th Memorandum”). It did not
reprimand plaintiff for making the alleged AK-47 statement or even mention that statement. It
simply noted plaintiff’s schedule change as a result of his time and attendance problems.
Plaintiff signed and acknowledged receipt of the November 5th Memorandum “in protest,” and
Del Pino sent it Cindy Haskins, Director of Personnel Services at the in BIC. She, in turn,
forwarded it the same day to defendant John Curry, the Disciplinary Advocate and Deputy
General Counsel in BIC’s legal department.
Del Pino’s deposition testimony was ambiguous as to when he first orally relayed the
alleged AK-47 statement to anyone at BIC.1 He sent his first written report of the statement to
Haskins and Curry (among others) four days after his meeting with plaintiff, on November 9,
2015, although his memorandum relaying the statement was dated November 10, 2015 (the
1 “I don’t recall. It may have been the next day during normal business hours.”
“November 10th Memorandum”). The November 10th Memorandum recited that Del Pino had
met with plaintiff, discussed his time and attendance issues, and that Del Pino had prepared the
November 5th Memorandum. The November 10th Memorandum then stated: “During the
course of the conversation Mr. Kornmann stated the following: ‘I would never do it, but friends
of mine have asked me how you don’t just show up to work with an AK-47 given everything
they put you through.’” Although this is the first written documentation of the alleged AK-47
statement, it seems likely that Del Pino had discussed it with Haskins either on or prior to
November 9th, as his cover memorandum to her stated: “See attached. I kept it short and to the
point. Let me know if you need more on this.”
On November 13, 2015, plaintiff was called to a meeting with Haskins and Curry. They
told him that in light of his statement referencing an AK-47 to Del Pino (which plaintiff asserts
he was hearing for the first time), he was being immediately suspended without pay. He was
escorted from the building. He was forced to surrender his credentials. And he was prohibited
from reentering the building.
On November 24, 2015, Curry and Haskin attended a meeting with plaintiff’s union
(“DC-37”) at DC-37’s offices ostensibly to resolve the charges (no doubt as per their collective
bargaining agreement). Plaintiff advised BIC the day before the conference that he would not or
could not attend. The effort at resolution was unsuccessful. In fact, although plaintiff denies
receiving it until his union representative gave it to him on January 16, 2016, BIC had already
prepared and sent, or prepared immediately after the meeting and sent, a set of Charges and
Specifications based on plaintiff’s alleged AK-47 statement.
We know this because on that same day as the November 24th meeting, BIC sent to
plaintiff, copied to DC-37, a letter captioned “Notice of Settlement Conference/Hearing at
OATH,” which “confirm[ed] that you and your union, DC-37, have been properly served with
the Charges and Specifications… .” The letter recited that BIC and DC-37 had met that day; that
plaintiff had been absent; and that BIC’s decision following the meeting that day was “to seek
TERMINATION of your employment … based upon the Charges and Specifications” pursuant
to N.Y. Civ. Serv. L. § 75. Finally, the letter advised plaintiff that BIC would request a pre-
termination hearing before the Office of Administrative Trials and Hearings (“OATH”) on an
expedited basis.
In this action, the parties agree that although the OATH hearing was a necessary step
under BIC’s collective bargaining agreement with DC-37 prior to plaintiff’s termination, BIC
would not be bound if the OATH Administrative Law Judge recommended against termination,
but could terminate plaintiff anyway. That was confirmed to plaintiff by Curry and plaintiff’s
union representative during a pre-hearing settlement conference on January 4, 2016, at which
Curry told plaintiff that BIC was going to terminate him regardless of the result of the OATH
hearing. Plaintiff was also told that if the ALJ found he was subject to termination for
misconduct, plaintiff might lose his pension. According to plaintiff, this meeting was the first
time he learned that BIC intended to fire him because, as noted above, he denies receiving the
November 24th letter and the Charges and Specifications.
Plaintiff maintains that because of the non-binding nature of the OATH hearing, it would
have been futile to proceed with it. He therefore submitted his resignation on January 7, 2016.
effective as of February 2, 2016. He filed his administrative charge of disability discrimination
and retaliation before the U.S. Equal Employment Opportunity Commission on October 19,
2016.
Plaintiff commenced this action on April 17, 2017. His second amended complaint
alleges eleven claims for relief: (1) discriminatory discharge under the ADA; (2) failure to
accommodate under the ADA; (3) retaliation under the ADA; (4) discrimination on the basis of
disability under N.Y. Executive Law § 296; (5) failure to accommodate, (6) retaliation, and (7)
aiding and abetting discrimination and retaliation under the same state statute; (8) discrimination
on the basis of disability under N.Y.C. Admin. Code § 8-107; and (9) failure to accommodate,
(10) retaliation, and (11) aiding and abetting discrimination and retaliation under the same state
code.
DISCUSSION
I.
Under Federal Rule of Civil Procedure 56, a court may grant summary judgment when
“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.” “Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
marks omitted).
A dispute as to a material fact is “‘genuine’ … if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The opposing party must put forward some “concrete evidence from which a
reasonable juror could return a verdict in his favor” to withstand a motion for summary
judgment. Id. at 256. “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether
he is ruling on a motion for summary judgment or for a directed verdict.” Id. When deciding a
motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. (internal quotation mark omitted).
II.
A.
The ADA’s exhaustion provision requires that a claimant file an administrative complaint
with the EEOC within 300 days of the discriminatory act. See 42 U.S.C. §§ 2000(e)-(5)(e)(1);
42 U.S.C. § 12117; Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir.
2003).
Defendants contend that plaintiff’s discrimination claim accrued when he was suspended
without pay on November 13, 2015. However, when the adverse employment action is a
constructive discharge, the employee holds the key to when his claim accrues for purposes of the
300-day period. In Green v. Brennan, 136 S. Ct. 1769, 1782 (2016), the Supreme Court held that
it was the act of “resignation [that] triggers the limitations period for a constructive-discharge
claim.” An employee does not resign until he provides notice of his intent to end his
employment, regardless of when he last worked for his employer.
Plaintiff resigned on January 7, 2016. Therefore, his administrative charge filed with the
EEOC – 286 days later – fell within the relevant time limitations. His constructive discharge
claim is administratively exhausted.
Defendants rely on a false syllogism to argue otherwise. First, they point out that a
constructive discharge claim is a specie of hostile work environment claim, see Yin v. N. Shore
LIJ Health Sys., 20 F. Supp. 3d 359, 374 (E.D.N.Y. 2014). Second, they note that a hostile work
environment claim must be based on the employer’s workplace misconduct, citing cases like
Weisbecker v. Sayville Union Free Sch. Dis., 890 F. Supp. 2d 215, 235 (E.D.N.Y. 2012). Third,
they contend that since plaintiff was suspended on November 13, 2015, and never returned to the
workplace, BIC could not have engaged in any workplace misconduct after that date. From
these assumptions, they conclude that plaintiff could not have a constructive discharge claim that
accrued later than November 13, 2015.
Plaintiff has submitted evidence that at least raises a factual issue as to whether there was
interaction between BIC and plaintiff subsequent to his suspension. First, although defendants
have shown that they mailed the Charges and Specifications document on November 24th,
plaintiff claims that he did not receive it until January 2016. Second, plaintiff asserts that it was
in January 2016 that Curry and his union representative told him that BIC intended to fire him,
with the possible loss of his pension, regardless of the outcome of the OATH hearing. These
interactions are as much a part of the employer’s “workplace conduct” as the parties’ earlier
interactions. They contribute to plaintiff’s constructive discharge claim, and both occurred
within the 300-day period.
For similar reasons, at least part of plaintiff’s retaliation claim under the ADA was timely
exhausted. Since the act of retaliation consisted of a constructive discharge, the 300-day period
did not accrue until plaintiff resigned.2
Although plaintiff’s constructive discharge and retaliation claims were therefore timely
exhausted under the ADA, his failure to accommodate claims are not. The last failure to
accommodate that he alleges occurred at the November 4, 2015 meeting when Del Pino refused
his request for a schedule accommodation.3 That is more than 300 days before he filed his
2 When asked at oral argument what the adverse action was following plaintiff’s November 13th suspension,
plaintiff’s counsel identified only the constructive discharge in January.
3 Plaintiff raises two arguments that require little discussion. First, he claims that he repeated his request for an
accommodation at the January 4, 2016 pre-hearing settlement meeting. But by that time, he had been suspended
without pay and told that BIC intended to fire him. He cannot bootstrap himself into a failure to accommodate claim
at that late point by simply repeating the request he had made on November 4th. Second, he claims his November
4th request for an accommodation was never denied, and thus the statute of limitations did not begin to run until his
constructive termination. But that is belied by the record; plaintiff would not have expressed his intent to grieve his
EEOC charge, and thus that alleged failure to accommodate, and any failures prior to it, were not
exhausted within 300 days.
B.
The statute of limitations for plaintiff’s NYSHRL and NYCHRL claims is three years.
See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin Code § 8-502. Each failure to accommodate a
request for accommodations is a discrete act for statute of limitations purposes. See Gomez v.
New York City Police Dep’t, 191 F. Supp. 3d 293, 302 (S.D.N.Y. 2016).
Plaintiff’s claims for failure to accommodate as requested in the November 4, 2015
meeting and for constructive discharge based on his January 7, 2016 resignation are therefore
timely under state and local law. However, plaintiff alleges no other failure to accommodate or
other discrimination claims that occurred within the three year period prior to his commencement
of this case.4 Any earlier claims for failure to accommodate are therefore time-barred.
III.
Claims alleging ADA disability discrimination are derived from the familiar burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013).5 At step one, a plaintiff must
make out a prima facie case by showing 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
new schedule if his request had not been denied, and his suspension nine days later was as clear a statement as
needed that BIC was not going to make scheduling accommodations for him.
4 See preceding footnote.
5 The elements for finding discrimination under NYSHRL and NYCHRL generally track the ADA. See Kinneary v.
City of New York, 601 F.3d 151, 155–56 (2d Cir. 2010); Ugactz v. United Parcel Service, Inc., No. 10-cv-1247,
2013 WL 1232355, at *14 (E.D.N.Y. March 26, 2013). There are a few differences between the federal and non-
federal claims but other than the procedural differences noted above, none of them are material here.
functions of his job with or without reasonable accommodations; and (4) he suffered an adverse
employment action because of his disability. Id. In determining whether the plaintiff has met his
burden, the court may consider only the evidence presented by the plaintiff, see Graham v. Long
Island R.R., 230 F.3d 34, 42 (2d Cir. 2000), and the plaintiff must make only a de minimis
showing. See Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).
At step two, a defendant must “articulate some legitimate, nondiscriminatory reason for
its action,” but “need not persuade the court that it was actually motivated by the proffered
reason.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014) (internal quotation
marks omitted). If the defendant makes that showing, then, at step three, the burden shifts back
to the plaintiff to show a factual issue that either “the proffered reason was merely a pretext for
discrimination,” Heyman v. Queens Village Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir.
1999); or that the same evidence that the plaintiff relied on for his prima facie case is sufficient
to raise a factual issue, see Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001); or that there are
additional circumstances demonstrating facts that are in dispute, see Brierly v. Deer Park Union
Free Sch. Dist., 359 F. Supp. 2d 275, 291 (E.D.N.Y. 2005).
For purposes of this motion, defendants do not dispute that plaintiff has satisfied the first
three factors for his prima facie case, but contest whether plaintiff has shown the fourth factor,
i.e., that his termination was the result of his disability. However, plaintiff has easily met his de
minimis burden. His claim is that instead of making a reasonable scheduling accommodation for
his chondromalacia, Del Pino: (1) put him on a schedule that plaintiff’s condition would make
painful or impossible to keep, thus setting him up for failure; (2) rather than waiting for him to
file and proceed to a grievance hearing for the failure to accommodate, Del Pino made up a story
about a gun threat; and (3) BIC determined to fire plaintiff, at the possible cost of his pension,
based on the false gun threat, even if an ALJ at an OATH hearing recommended against it,
unless plaintiff agreed to resign. Construing the record in the light most favorable to plaintiff,
the recitation of the evidence in this decision shows that there is at least circumstantial evidence
to support each one of these contentions, and direct evidence to support most of them.
BIC has a proffered a bona fide business justification for plaintiff’s termination – the gun
threat – and has thereby discharged its burden at step two of McDonnell-Douglas. See Brown v.
Soc'y for Seaman's Children, 194 F. Supp. 2d 182, 191–92 (E.D.N.Y. 2002). However, the
dispute as to whether plaintiff even made the gun statement leaves us with a factual issue at step
three.
If Del Pino fabricated the gun statement, as I must assume for purposes of this motion,
then a jury has to determine why. It might find that Del Pino was tired of plaintiff’s complaining
about his disability and didn’t want to accommodate his schedule. It might also find that Del
Pino thought that plaintiff’s complaints about his disability would continue to make him a
problematic employee in terms of his time and attendance, and therefore dismissed consideration
of plaintiff’s chondromalacia. Of course, the jury might instead find that plaintiff actually made
the gun statement. Or it might find that plaintiff was goldbricking, exaggerating his disability to
request accommodations that he didn’t need. But I am not going resolve these factual issues on
summary judgment.
IV.
The applicable standard for defeating a summary judgment motion for an ADA
retaliation claim is also adapted from McDonnell Douglas Corp., 411 U.S. at 802–05, discussed
above. To summarize, the plaintiff must first establish a prima facie case of retaliation by
showing that:
(1) he engaged in an activity protected by the ADA; (2) the employer was aware
of this activity, (3) the employer took adverse employment against him, and (4) a
causal connection exists between the alleged adverse action and the protected
activity.
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). Upon such a showing, the
employer must articulate legitimate non-discriminatory reasons for its actions. If it does so, the
plaintiff must point to evidence that would be sufficient to permit a rational factfinder to
conclude that the employer’s explanation is merely a pretext for impermissible retaliation. Id. at
721.6
Defendants contend that plaintiff cannot demonstrate the causation required for factor
four of his prima facie case or the third step of McDonnell-Douglas because he resigned before
the OATH hearing. I reject that argument for two reasons.
First, the time between the protected activity – the request for accommodation at the
November 4th meeting and the threat to grieve Del Pino’s denial of that accommodation, and the
adverse action – plaintiff’s constructive discharge – is short. Even with the constructive
discharge claim having accrued on January 7, 2016 when plaintiff resigned, it is just over two
months. Many cases hold that temporal proximity between the protected conduct and the
adverse action is sufficient to establish a prima facie case. See, e.g., Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 110–11 (2d Cir. 2010); Risco v. McHugh, 868 F. Supp. 2d 75, 114
(S.D.N.Y. 2012). And it is not as if defendants spent that time idly – they used the time to
implement the process to get plaintiff fired. Their reaction to plaintiff’s protected activity
occurred within days of Del Pino’s written report of the gun threat.
6 Although “[t]he standards for evaluating … retaliation claims are identical” under the ADA and NYSHRL, see
Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013), a claim under the
NYCHLR is governed by a standard more favorable to plaintiff. See Mihalik v. Credit Agricole Cheuvreux N. Am.,
Inc., 715 F.3d 102, 112 (2d Cir. 2013).
Second, Green v. Town of East Haven, 952 F.3d 394, 404 (2d Cir. 2020), requires me to
reject defendants’ argument. There, a police officer was being investigated for minor
misconduct. In anticipation of a pre-termination hearing, the investigating internal affairs officer
and the Chief of Police told her that she would likely be fired; that her fellow officers no longer
trusted her; and that if she was eligible for retirement, she should take it prior to the hearing. Her
union representative told her that if she proceeded with the hearing, she would “almost certainly”
lose. The Second Circuit reversed the district court’s dismissal of her age discrimination claim
on summary judgment, holding that a jury “could rationally find that an employee in Green's
shoes would have felt compelled to submit her resignation stating that she was retiring, rather
than face nearly certain termination.” Id. at 409.
I cannot find any meaningful distinction between this case and Green. If anything,
plaintiff’s case here is stronger, for the administrative hearing that Green chose to forego was not
merely advisory, but binding; nevertheless, the Second Circuit relied on the fact that Green had
been told by her union representative and other employees that the hearing would “likely” or
“almost certainly” result in her termination. Id. at 408. Here, plaintiff received advice from his
union representative that BIC would not be bound by the result in the OATH hearing, and Curry
made it clear to plaintiff that BIC was going to fire him regardless of its outcome. If true, that is
a viable constructive discharge claim.
CONCLUSION
Defendants’ [90] motion for reconsideration for summary judgment is granted in part and
denied in part. The failure to accommodate claim under the ADA is dismissed, and the
remaining claims shall proceed to trial.
SO ORDERED.
U.S.D.J.
Dated: Brooklyn, New York
June 15, 2020
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