Lavender v. Verizon Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------X

EILEEN S. LAVENDER,

Plaintiff, MEMORANDUM & ORDER

17-CV-6687(JS)(ARL)

-against-

VERIZON NEW YORK INC., MICHAEL

DZUGAN, PETER ALAGNA, KEN

MONFREDO, FIOS MANAGER UNKNOWN

NAME,

Defendants.

--------------------------------X

APPEARANCES

For Plaintiff: Eileen S. Lavender, Pro se1

2705 Connecticut Avenue

Medford, New York 11763

For Defendants: Erika D. Cagney, Esq.

Jessica Kastin, Esq.

Jones Day

250 Vesey Street

New York, New York, 10281

SEYBERT, District Judge:

Presently before the Court are Plaintiff’s Motion for

Summary Judgment (hereafter “Pl.’s Motion”) (ECF No. 70); and

Defendants’ cross-motion for Summary Judgment (hereafter “Cross-

Motion”) (ECF No. 76), each filed pursuant to Federal Rule of Civil

Procedure 56. Plaintiff argues she has satisfied her burden in

establishing that Defendants discriminated against her in

violation of the Americans with Disabilities Act of 1990 (hereafter

1 The Hofstra Pro Se Legal Assistance Program assisted the litigant

in the preparation of drafts of her summary judgment materials but

does not appear on her behalf.

the “ADA”): (1) by failing to provide her with reasonable

accommodations; and (2) for disparate treatment in failing to

provide her with equal employment opportunities and terms,

conditions, and privileges of employment. Defendants counter

that: (1) the individual named defendants cannot be held

individually liable since the ADA does not permit for individual

liability; and (2) Plaintiff cannot satisfy her prima facie burden

under the ADA because she was not a qualified individual under its

terms.

For the reasons that follow, Plaintiff’s Motion for

Summary Judgment is DENIED, and Defendants’ Cross-Motion for

Summary Judgment is GRANTED IN ITS ENTIRETY.

BACKGROUND

I. Facts2

A. The Parties

Defendant Verizon New York Inc. (hereafter “Verizon,”

“Defendant,” or “Company”), “is a global leader in delivering

2 The following facts are taken from the Defendants’ Local Rule

56.1 Statement (hereafter “Defs.’ 56.1 Stmt.”) (ECF No. 82); the

Plaintiff’s Local Rule 56.1 Counterstatement (hereafter “Pl.’s

56.1 Counterstmt.”) (ECF No. 71); and Defendants’ Local Rule 56.1

Counterstatement (hereafter “Defs.’ 56.1 Counterstmt.”) (ECF No.

83). Plaintiff failed to provide a coherent 56.1 statement of

material facts but annexed to her counterstatement what the Court

assumes to be Plaintiff’s 56.1 statement; the Court will refer to

this document as Plaintiff’s statement of material facts going

forward. Where necessary, the Court has also reviewed the

evidentiary record to determine the material facts of this case.

innovative communications, information and entertainment products

and services.” (Defs.’ 56.1 Stmt. ¶ 2.)

Kenneth Monfredo (hereafter “Monfredo”), Mike Dzugan

(hereafter “Dzugan”), and Peter Alagna (hereafter “Alagna”)

(together the “Individual Defendants” and together with Verizon

“Defendants”) were, at various times, in Plaintiff’s reporting

chain during her employment with Verizon. (See Defs.’ 56.1 Stmt.

¶¶ 3-5; Pl.’s 56.1 Counterstmt. ¶¶ 3-5.) Daniel Farrington

(hereafter “Farrington”) is a Verizon employee who was initially

named as a Defendant in this case under the moniker “Fios Manager

Unknown Name.” (Defs.’ 56.1 Stmt. ¶ 6; Pl.’s 56.1 Counterstmt.

¶ 6.) However, Farrington was never served with this lawsuit and

therefore is not an individual defendant. (Id.)

Eileen Lavender (hereafter “Plaintiff”) “is a Verizon

Employee who is currently on disability leave.” (Defs.’ 56.1 Stmt.

¶ 1.) Plaintiff was placed on disability leave on November 17,

2015. (Pl.’s 56.1 Stmt. ¶ 3.)

B. Verizon’s Internal Policies and Processes

Verizon maintains both an Equal Employment Opportunities

Policy (hereafter the “EEO Policy”) and an Americans with

Disabilities Act Policy (hereafter the “ADA Policy”). (Def.’s

56.1 Stmt. ¶¶ 8-9; Pl.’s 56.1 Counterstmt. ¶¶ 8-9.) In the EEO

Policy, Verizon commits to “comply fully with all laws providing

equal opportunity to all persons without regard

to . . . disability . . . or any other protected category under

applicable law.” (EEO Policy, Ex. A, ECF No. 78-1, attached to

Ferrari Decl.) Similarly, Verizon’s ADA Policy states that it is

committed to “providing equal employment opportunities and

treating qualified individuals with disabilities without

discrimination in all employment decisions.” (ADA Policy, Ex. B,

ECF No. 78-2, attached to Ferrari Decl.)

Additionally, Verizon has a Health Impairment Plan,

colloquially referred to as the “HIC Process,” for employees who

develop long-term or permanent impairments. (Def.’s 56.1 Stmt.

¶ 15; Pl.’s 56.1 Counterstmt. ¶ 15.) Generally, “[t]he first step

[in the HIC Process] . . . requires departments to explore

possible reasonable accommodations” for the affected employee.

(HIC Process, Ex. B, ECF No. 81-2, attached to Cagney Decl.,

§ 2.2.) However, where an accommodation cannot be made, the HIC

Process includes a three-month job search designed to provide the

employee with priority placement for other jobs within Verizon.

(Pl.’s 56.1 Counterstmt. ¶ 16.)

Procedurally, “[i]f Medical3 has indicated that the

restriction will last more than six months . . . the HI-1

3 Medical refers to MetLife, who, for the relevant period, “was

Verizon’s third-party administrator for its short term disability

plan and provided medical support to the Workplace Accommodations

Team relating to reviewing medical documentation for accommodation

requests.” (Murray Decl. ¶ 3 n.1.)

form . . . will be initiated by the Department.” (Pl.’s 56.1 Stmt.

¶ 178; Def.’s 56.1 Counterstmt ¶ 178.) “If accommodation is made

or if the restriction was removed by [Medical] a [c]ompleted [HI-

2 form] should be sent to the HIC coordinator.” (Pl.’s 56.1 Stmt.

¶ 179; Defs.’ 56.1 Counterstmt. ¶ 179; HIC Process § 3.12.) A HI-

3 form should be prepared to obtain Medical’s concurrence “if a

reasonable accommodation is not possible, but a lateral assignment

can be made within the Department.” (HIC Process § 3.13.) Where

“no reasonable accommodation or lateral assignment can be made

within the Department, an HI-3 Form must be completed listing

reasons in Section I and signed by the employee’s district level

manager as Department Authorization.” (Id. at § 3.14.)

Additionally, pursuant to Section 3.15 of the HIC Process:

The supervisor should arrange a meeting with

the employee to determine his or her

understanding of the restriction, and of the

[] Medical recommendation. The supervisor

must explain in detail the Health Impairment

Process, including the provisions for restoral

if a downgrade is necessary. Following the

discussion, Section 1, page 2 of the HI-3 Form

is completed, noting that the above

information was explained to the employee, and

the employee’s signature is obtained. (If the

employee prefers not to sign, the supervisor

should make this notation.)

(Id. § 3.15 (emphasis added).)

C. Plaintiff’s Career at Verizon

Plaintiff began working at Verizon as a Telephone

Operator when the Company was known as NYNEX in 1997. (Pl.’s 56.1

Stmt. ¶ 2; Defs.’ 56.1 Counterstmt. ¶ 2). Plaintiff held this

position until December 31, 2005. (Pl.’s Dep. Tr. I, ECF No.

71-31, attached to Pl.’s 56.1 Counterstmt., 40:5-18.)

Subsequently, Plaintiff became a Field Technician (hereafter “FT”)

and began training for this role on January 1, 2006. (Pl.’s 56.1

Stmt. ¶ 4; Defs.’ 56.1 Counterstmt. ¶ 4.) Plaintiff’s training

for the FT role required participation in, inter alia, Pole

Climbing School. (Pl.’s 56.1 Stmt. ¶ 5; Defs.’ 56.1 Counterstmt.

¶ 5). After training, Plaintiff was assigned to the “Enterprise

Specials North Gang” (hereafter “Specials North”). (Defs.’ 56.1

Counterstmt. ¶ 6; Pl.’s 56.1 Counterstmt. ¶ 22.)

FTs have numerous job responsibilities that require work

in various environments. (Defs.’ 56.1 Stmt. ¶ 23; Pl.’s 56.1

Counterstmt. ¶ 23.) For example, an FT must work “outside in all

weather conditions” and, inter alia, “climb[] poles and ladders,

and work[] aloft for long periods using tools and test equipment.”

(Defs.’ 56.1 Stmt. ¶ 23; Pl.’s 56.1 Counterstmt. ¶ 23.) When

climbing, FTs can use: (1) climbing poles; (2) six-foot ladders;

(3) 24-foot ladders; and/or (4) bucket trucks. (Pl.’s 56.1

Counterstmt. ¶ 23.) Plaintiff admits that climbing was “part of

[her] job.” (Pl.’s Dep. Tr. I 223:7-16.) Indeed, the FT’s

official duties, including the climbing requirement, are

articulated in a written job description. (See Field Technician

Job Description, Ex. C, ECF No. 81-3, attached to Cagney Decl.

(hereafter the “FT Description”).) In addition to climbing, the

FT Description “includes a 100-pound pushing, pulling, and lifting

requirement.” (Defs.’ 56.1 Stmt. ¶ 24; Pl.’s 56.1 Counterstmt.

¶ 24.)

Plaintiff admitted in her deposition that if there was

a reorganization at the Company, or if she were transferred to a

role outside Specials North, she could “end up doing” certain of

the duties articulated in the job description that she did not

presently perform as a Specials Technician, subject to receiving

training for that specific job. (Pl.’s Dep. Tr I 216:7-16; 221:21-

223:4.) Plaintiff further admitted that the duties listed in

Section F of the FT Description were “part of [her] job.” (Pl.’s

Dep. Tr. I 223:7-16.) Alagna also testified that an FT must be

able to climb. (Alagna Dep. Tr., Ex. 98, ECF No. 71-28, attached

to Pl.’s 56.1 Counterstmt., 62:23-63:3.) Further, Alagna

testified that he believed climbing to be an essential function of

Plaintiff’s role. (Id. at 185:4-6.)

A pole job requires use of steps or a ladder. (Pl.’s

Tr. 96:18-21.) “Not every job requires climbing,” and an FT does

not know if climbing will be necessary “unless [he] go[es] out

there and see[s].” (Alagna Dep. Tr. 84:2-14.)

Regarding the 100-pound lifting requirement, Plaintiff

testified that she could not lift 100 pounds, but also testified

that she was never required to lift this much in her role as a

Specials Technician. (Pl.’s Dep. Tr. I 49:9-14.) Plaintiff

testified that her job required her to lift no more than 60 pounds

and that “[w]hen you were tested, you were required, and the [job

listing] stated, [to lift] 60-pounds.” (Id.) Plaintiff further

testified that in Specials North she “never had to lift anything

over 60-pounds [and that] [t]he heaviest thing that [she] ever had

to lift was the ladder” because Specials North “don’t have a lot

of heavy equipment.” (Id. at 226:13-17.)

1. Plaintiff Suffers Multiple Injuries While

Working as an FT

In or around August 2006 “Plaintiff’s company van was

struck by a car while parked on [a] job site.” (Pl.’s 56.1 Stmt.

¶ 11; Defs.’ 56.1 Counterstmt. ¶ 11.) Then, on or around March

2007, Plaintiff’s van was struck by a car while the van was

stationary at a red light. (Defs.’ 56.1 Stmt. ¶ 33; Pl.’s 56.1

Counterstmt. ¶ 33.) The swelling caused by the injuries sustained

in these accidents eventually impacted Plaintiff’s ability to work

as an FT. (Pl.’s Dep. Tr. I 53:22-54:5.) For example, Plaintiff

testified that she “lost control of [her] hands,” (id. at 54:15-

54:16), and “would start to lose control of [her] left leg” getting

out of the truck. (Id. at 53:22–54:9.) Sometime in 2007, while

working aloft, Plaintiff lost control of her hands on two occasions

causing her to have to improvise a means of remaining on the pole

until function returned to her hands. (Id. at 54:12-57:9.)

Due to her injuries, as of September 28, 2008, Plaintiff

was restricted to “no lifting greater than 25 pounds.” (Pl.’s

56.1 Counterstmt. ¶ 39.) Consequently, Plaintiff was unable to

climb poles or use the 24-foot extension ladder. (Id.)

2. Plaintiff Volunteers for a Temporary Project

In 2008, “Plaintiff volunteered to work on a Bonding and

Grounding temporary project.” (Defs.’ 56.1 Stmt. ¶ 40; Pl.’s

Counterstmt. ¶ 40.) The Bonding and Grounding Project ran from

approximately October 2008 to March 2010 and did not involve pole

climbing since all work was ground level. (Pl.’s Counterstmt.

¶ 21; Pl.’s Dep. Tr. I 76:19-77:4.)

On November 7, 2008, Plaintiff had a third workplace

accident when she fell down an outdoor set of stairs while working

at a customer’s home. (Defs.’ 56.1 Stmt. ¶ 43; Pl.’s 56.1

Counterstmt. ¶ 43.) The fall injured Plaintiff’s “[b]ack (spine),

left leg (inclusive of hip), left knee, left arm (inclusive of

shoulder), left elbow, and right wrist.” (Pl.’s 56.1 Counterstmt.

¶ 44.)

3. Plaintiff Returns to Specials North

In or around March 2010, Plaintiff returned to Specials

North, where she reported to Dzugan. (Pl.’s Stmt. ¶ 24.) At that

time, Plaintiff’s restrictions were “no carrying, pushing, or

pulling greater than 25 pounds and no repetitive bend, kneel,

squat, [or] crawl.” (Pl.’s 56.1 Counterstmt. ¶ 46.) As such,

Plaintiff was unable to use any ladder weighing more than

25-pounds, including the 24-foot extension ladder used for pole

climbing. (Defs.’ 56.1 Stmt. ¶ 39; Pl.’s 56.1 Counterstmt. ¶ 39.)

Plaintiff testified that at this time Verizon was accommodating

her by giving her only ground level assignments or “tickets.”

(Pl.’s Dep. Tr. I 102:17-21.) Plaintiff contends that she utilized

a yellow, 25-pound, six-foot ladder when the ticket required work

on a drop ceiling, or above-head height and which was reachable by

such ladder. (Pl.’s 56.1 Counterstmt. ¶ 47.) Additionally, Dzugan

permitted Plaintiff to complete work “at her own pace,” which

allowed her to stretch and move around as necessary, as part of

her restrictions. (Pl.’s Counterstmt. ¶ 48; Pl.’s Dep Tr. I

102:22-103:6; 241:17-242:18.) Plaintiff testified that there were

occasions when pole jobs would come in and Dzugan was able to send

her on them despite her inability to climb because he had prior

knowledge that the location did not require climbing. (Pl.’s Dep.

Tr. I 103:18-104:8.)

4. Plaintiff’s Work in the Central Offices

In or around May 2011, Plaintiff volunteered for a

temporary project in the Central Offices (hereafter the “CO”).

(Pl.’s 56.1 Counterstmt. ¶ 51.) Plaintiff’s duties at the CO

differed from what she did as an FT. (Pl.’s Dep. Tr. I 117:3-11.)

For example, Plaintiff was not required to climb poles, or carry

any ladders used for pole climbing because the CO was equipped

with “stationary and rolling ladders and stairs.” (Pl.’s 56.1

Counterstmt. ¶ 51.) Ultimately, the work that Plaintiff performed

was only a portion of that which made up the duties of a Central

Office Technician (hereafter “COT”). (Defs.’ 56.1 Stmt. ¶ 77,

Pl.’s Counterstmt. ¶ 77.)

At the CO, Plaintiff severed a tendon in her hand due to

the repetitive pulling of wire, which was part of her job. (Defs.’

56.1 Stmt. ¶ 52, Pl.’s 56.1 Counterstmt. ¶ 52.) Plaintiff

ultimately had to have hand surgery. (Pl.’s Dep. Tr. I 153:9-22.)

Around April or May 2014, Plaintiff began to experience

back spasms. (Pl.’s Dep. Tr. I 126:4-15.) Plaintiff testified

that the back spasms restricted her movement and could “lock [her]

in[to] a position.” (Id. at 126:22-127:2.) Ultimately, Plaintiff

was out of work from approximately April 8, 2014 to May 2, 2014

for her back spasms, and from around July 9, 2014 until March 2015

due to her hand surgery. (Defs.’ 56.1 Stmt. ¶¶ 52, 53; Pl.’s 56.1

Counterstmt. ¶¶ 52, 53; Pl.’s Dep. Tr. I 157:14-17.)

5. Plaintiff’s Request for a Bucket Truck and Return

to Work

On February 23, 2015, Plaintiff submitted a request for

a bucket truck believing that it would increase her working

abilities since climbing, aerial work, and working aloft were

problematic for her. (Pl.’s 56.1 Counterstmt. ¶ 55.) A bucket

truck alleviates the need to climb for particular jobs depending

upon the environment. (Defs.’ 56.1 Stmt. ¶ 55; Pl.’s 56.1

Counterstmt. ¶ 55; Pl.’s Dep. Tr. I 158:19-22.) Not all aerial

jobs can be completed with a bucket truck. (Id.) In Plaintiff’s

own words, the bucket truck “handles things that ladders can’t

do.” (Pl.’s Dep. Tr. I 158:11-15; 162:23-25.) In Specials North

Bucket Trucks were primarily used on cable failure jobs. (Alagna

Dep. Tr. 115:4-18.) These cables torqued 50-100 pounds when

pulled. (Id. at 113:2-7.) Additionally, using a bucket truck

requires certain training which, at the time of her request,

Plaintiff did not have. (Pl.’s 56.1 Counterstmt. ¶ 55.)

Ultimately, the bucket truck request was denied by Monfredo because

there were no trucks available at that time. (Defs.’ 56.1 Stmt.

¶ 58; Pl.’s 56.1 Counterstmt. ¶ 58.) Plaintiff recognized that

Verizon’s denial of her bucket truck request was non-

discriminatory and was simply a result of non-availability of

equipment. (Pl.’s Dep. Tr. I 178:14-179:2.)

Plaintiff officially returned to work on March 16, 2015,

under Dzugan. (Defs.’ 56.1 Counterstmt. ¶ 81.) Plaintiff alleges

that upon her 2015 return she discovered that her tools, which

were allegedly put in storage in 2011, were no longer in storage.

(Pl.’s 56.1 Stmt. ¶ 83; Defs.’ 56.1 Counterstmt. ¶ 83.)

Specifically, Plaintiff testified that a yellow six-foot ladder

weighing 25-pounds was “changed out” to a heavier, orange, ladder

weighing 30-pounds. (Pl.’s Dep. Tr. I 265:2-11.) Dzugan neither

recalled the ladder’s existence nor whether it had ever been

swapped out. (Dzugan Dep. Tr., Ex. 99, ECF No. 71-29, attached to

Pl.’s 56.1 Counterstmt., 89:25-90:8; 94:5-24.) Similarly,

Plaintiff claims that on April 14, 2015, she requested that Dzugan

exchange the 30-pound ladder for another technicians 25-pound

ladder; again, Dzugan did not recall Plaintiff’s request. (Pl.’s

56.1 Stmt. ¶ 88; Dzugan Tr. 93:22-94:24.)

In May 2015, Plaintiff began reporting to Alagna who

took over Dzugan’s gang in Specials North. (Pl.’s 56.1

Counterstmt. ¶ 62.) Plaintiff was assigned to the Suffolk County

Business Group (hereafter the “Business Group”) as a universal

technician. (Id. ¶ 73.) While supervising Plaintiff, Alagna

testified that he would spend time each day going through job

tickets to find jobs that Plaintiff could do and prioritize her

for groundwork. (Def.’s 56.1 Stmt. ¶ 68; Pl.’s 56.1 Counterstmt

¶ 68.) Nevertheless, upon her return Plaintiff would receive jobs

that she could not complete, including various pole jobs; when

that occurred, Plaintiff returned them to dispatch and attempted

to get groundwork jobs instead. (Pl.’s 56.1 Counterstmt. ¶ 72;

Pl.’s Dep. Tr. I 202:5-17.) Plaintiff noted that in the Business

Group it seemed that “anything that came in with an aerial box

seemed to be going toward that department.” (Pl.’s Dep. Tr. I

223:17-224:10.) Plaintiff further estimated that, on average, she

was assigned pole jobs “pretty much daily” and that on some days

she was designated “multiple jobs.” (Id. at 205:10-13.) Sometime

in June 2015, Plaintiff returned to Specials North because the

Business Group was disbanded. (Id. at 198:2-200:12; Pl.’s 56.1

Stmt. ¶ 111.)

In 2015, there was an increasing volume of pole work at

Verizon. Alagna testified that “60 to 70 percent of [his

department’s] work [] require[d] being on poles” and that the

volume per day could fluctuate between technicians; for example,

“one person could have three [pole jobs], one person could have

none.” (Alagna Dep. Tr. 133:7-134:6.) Further, around May 2015

there was a shift to fiber optic lines from copper telephone lines

and that while FTs “in other departments handled the fiber optic

work [] Specials received the majority of the copper wire work.”

(Alagna Decl., ECF No. 79 ¶¶ 4, 5.) “Most of the copper wire work

involved repairing the copper wire, which typically required

climbing.” (Id. at ¶ 6.)

While under Alagna, Plaintiff testified that she was

restricted to a “helper” role which required Plaintiff to accompany

other FTs and assist them on their tickets. (Pl.’s Dep. Tr. I

247:16-23; Pl.’s Dep. Tr. II, Ex. 101, ECF No. 71-32, attached to

Pl.’s 56.1 Counterstmt., 286:18-21.) Plaintiff recalled Alagna

telling her that she was “just a helper now.” (Pl.’s Dep. Tr. I

248:6-8.) In response, Plaintiff requested refresher training in

order to be removed from helper tickets. (Id. at 128:9-12; 129:3-

6.) Consequently, in August 2015, Plaintiff went for four days of

on-the-job training with FT Kevin Nolan (hereafter “Nolan.”)

(Defs.’ 56.1 Stmt. ¶ 82; Pl.’s 56.1 Counterstmt. ¶ 82.) While

training with Nolan, Plaintiff was asked to carry his tool bag.

(Pl.’s 56.1 Counterstmt. ¶ 82.) Plaintiff was unable to carry the

tool bag and had to return it to Nolan because it was not evenly

weighted at each side. (-Id-.-) This incident, coupled with having

to sit in Nolan’s truck for a prolonged period, caused Plaintiff

to suffer a back spasm the following day, preventing her from being

able to get out of a chair on her own. (Pl.’s Dep. Tr. I 132:4-

16.) Afterwards, Plaintiff maintains that Alagna repeated that

she would “never be more than a helper.” (Pl.’s Dep. Tr. 248:9-

16.)

Plaintiff testified that: (1) in June and August 2015,

she began receiving conflicting information from Alagna regarding

whether she was going to be placed into the HIC Process (Pl.’s

Dep. Tr. II 325:3-10); (2) from August through September 2015, she

was denied overtime (Pl.’s 56.1 Stmt. ¶ 202; Pl.’s Dep. Tr. I

251:11-16); and (3) Alagna informed her that if she dropped her

restrictions she would “be welcomed at Verizon” (Pl.’s Dep. Tr. II

310:8-19).

6. Murray and Plaintiff Begin Discussing the

Benefits of the HIC Program

Starting in May 2015, Alagna and Sonia Murray -- a Human

Resource Consultant on Verizon’s Workplace Accommodations Team

(hereafter “WAT”) -- were in contact regarding Plaintiff and her

medical approvals. (Defs.’ 56.1 Counterstmt. ¶ 122.) Plaintiff’s

restrictions as of June 15, 2015, were “no lifting, push/pull 25

[pounds], no standing, squatting 20 min[utes], [and a] stool to

step up into truck.” (Email Chain With Managers, Ex. A, ECF No

77-1, attached to Murray Decl.) On June 15, 2015, Murray emailed

Alagna asking whether he could continue to accommodate Plaintiff’s

approved six-month restrictions. (Defs.’ 56.1 Counterstmt.

¶ 126.) Alagna’s reply is not part of the record. Regardless, in

June 2015, Murray and Floyd Khemai (hereafter “Khemai”) began

contacting various Verizon managers to determine if any of them

could accommodate Plaintiff. (Defs.’ 56.1 Stmt. ¶ 88; Pl.’s 56.1

Counterstmt. ¶ 88; Email Chain With Managers, in toto.) Verizon

speculates that this outreach was prompted by Alagna’s inability

to find Plaintiff productive work, though Plaintiff disputes this.

(Defs.’ 56.1 Stmt. ¶ 88; Pl.’s 56.1 Counterstmt. ¶ 88.)

Ultimately, no manager was able to accommodate Plaintiff. (Defs.’

56.1 Stmt. ¶ 88; Murray Decl. ¶ 15.) Nevertheless, Plaintiff

remained under Alagna’s supervision until November 2015. (Pl.’s

Dep. Tr. I 258:11-21.)

Sometime in 2015, Plaintiff and Murray discussed the HIC

Process. (Defs.’ 56.1 Stmt. ¶ 91; Pl.’s 56.1 Counterstmt. ¶ 91.)

Verizon asserts that Murray explained that the HIC Process could

potentially help Plaintiff find another position at the Company

that she could perform by giving her priority over other categories

of applicants for open Verizon positions. (Defs.’ 56.1 Stmt. ¶ 91;

Pl.’s 56.1 Counterstmt. ¶ 91.) However, Plaintiff denies that

Murray explained the process fully. (Id.) In September 2015,

Plaintiff applied to two open positions for COTs. (Pl.’s Dep. Tr.

II 324:15-25; Pl.’s 56.1 Stmt. ¶ 133.) The official job

description for the COT role has a lifting, pushing, pulling

requirement of 60-pounds and requires climbing. (COT Job

Description (hereafter the “COT Description”), Ex. G, ECF No. 81-7,

attached to Cagney Decl.; Monfredo Decl., ECF No. 80, ¶ 5.)

Additionally, under Section C(e) of the COT Requirements, a COT is

required to, as part of one’s daily functions: (1) “us[e] light to

heavy equipment”; (2) us[e] ladders and climbing poles”; and (3)

work[] in manholes, trenches, buildings, tunnels etc.” (COT Job

Description.) Monfredo, a former CO Manager that supervised COTs

and thus has personal knowledge of the duties that they are

required to perform, stated that COTs “are required to lift 60

pounds and to climb.” (Monfredo Decl. ¶ 5.) Further, Monfredo

stated that, in 2015, COTs “frequently had to lift ladders and

other equipment that weigh[ed] well-over 25 pounds.” (Id.)

Plaintiff testified that while COTs use ladders, the

ladders are smaller and are “like small staircases.” (Pl.’s Dep.

Tr. II 323:20-324:8.) Plaintiff testified further that although

the CO has “longer ladders,” the ladders are “attached to the

ceiling on wheels like library ladders.” (Id. at 324:9-14.) Yet,

Alagna testified that some of the CO outside ladders do not move

and must be manually rolled by the employee. (Alagna Dep. Tr.

241:20-242:3.) On this point, Alagna estimated that such ladders

can weigh from 50 to 75-pounds. (Id. at 242:5-6.) Moreover,

Alagna estimated that COTs frequently are required to climb. (Id.

at 234-35:18-9.)

Ultimately, Plaintiff’s application was unsuccessful.

(Pl.’s Dep. Tr. II 325:1-10.)

Earlier, in March 2015, Plaintiff testified that Murray

requested Plaintiff obtain a one-year approval letter for her

restrictions for submission to Medical. (Pl.’s Dep. Tr. I 167-

69: 1-25.) Plaintiff stated that prior to Murray’s involvement

she had been sending information to Medical personally but that

Medical had not been receiving the information. (Pl.’s Dep. Tr.

I 167:16-22.) Murray then suggested having the Plaintiff send the

information to her. (Id.) Plaintiff alleges that Murray advised

her to send information that was detrimental to her keeping her

job. (Id.) Specifically, Plaintiff alleges, and Verizon disputes,

that Murray failed to inform Plaintiff that the information Murray

sent to Medical specifying the permanence of Plaintiff’s

restrictions could place Plaintiff on Permanent Short-Term

Disability. (Pl.’s 56.1 Stmt. ¶ 143; Defs.’ 56.1 Counterstmt.

¶ 143.) Plaintiff’s initial claim for “indefinite workplace

accommodations beginning” February 24, 2015, was ultimately denied

by Medical as the “medical information provided” did not support

the need. (MetLife Diary Notes, Ex. 46, ECF No. 71-13, attached

to Pl.’s 56.1 Counterstmt.)

In June, when her next approval date was approaching,

Plaintiff alleges, and Defendants dispute, that Murray requested

the same doctor’s note as previously submitted, but for the doctor

to redate it so that Murray could submit it to Medical. (Pl.’s

56.1 Stmt. ¶ 145; Defs.’ 56.1 Counterstmt. ¶ 145.) Murray also

requested “extra medical records, tests” and various other

unspecified information. (Pl.’s 56.1 Stmt. ¶ 146; Defs.’ 56.1

Counterstmt. ¶ 146.) Medical denied the second request for

approval because “the medical on file [was] insufficient to make

a determination.” (2015 Timeline, Ex. 17, ECF No. 71-4, at 2,

attached to Pl.’s 56.1 Counterstmt.) However, on November 13,

2015, Medical approved Plaintiff’s one-year restrictions and

accommodations noting that they were “in alignment with the

underlying disabling medical condition and the request [was]

medically substantiated.” (Pl Tr. 172:23-173:25; 2015 Timeline,

at 2.)

7. Plaintiff is Placed on Short-Term Disability and

Inserted into the HIC Program

On November 16, 2015, Khemai emailed James Page,

Operations Manager in Garden City, to determine whether Page could

accommodate Plaintiff; Page replied that he could not. (Email Chain

Between Khemai & Page, Ex. C, ECF No. 77-3, attached to Murray

Decl.) Subsequently, on November 17, 2015, Plaintiff was informed

by Alagna that she was going to be placed on permanent short-term

disability leave because Verizon could no longer accommodate her

restrictions. (Defs.’ 56.1 Stmt. ¶ 94; Pl.’s 56.1 Counterstmt.

¶ 94.)

As per the HIC procedure, Defendant was required to

arrange a meeting with Plaintiff whereupon Plaintiff’s supervisor

should have determined Plaintiff’s understanding of the medical

recommendation and explained to her in detail the health impairment

process. (HI-3 Form, ECF No. 77-6, at 2, attached to Murray Decl.)

Moreover, the Plaintiff was required to sign the HI-3 form

indicating this explanation had been given. (Id.) Plaintiff’s

form contains neither her signature nor a notation to the effect

that she preferred not to sign. (Id.) Rather, Plaintiff’s

supervisor noted that “employee is out [] due to health[,] and

restrictions were discussed with her before.” (Id.) Additionally,

Section 2 of Plaintiff’s HI-3 form was not completed by Medical.

(Id.)

However, on December 8, 2015, Alagna sent Plaintiff a

letter explaining that Medical had “certified that [she had]

medical restrictions lasting more than six (6) months or for an

indefinite period that prevent[ed] [her] from performing” her job.

(Alagna Dep. Tr. 171:19-23; HIC Notice Letter, Ex. G, ECF No. 77-7,

attached to Murray Decl.) The letter explains that Plaintiff was

placed into a 90-day job search which would expire on March 9,

2016. (HIC Notice Letter.) Additionally, the letter explained

the benefits of the 90-day job search and advised Plaintiff to

engage with the process. (Id.) Finally, the letter included

contact information if Plaintiff had any inquiries. (Id.) During

the 90-day job search Plaintiff was unsuccessful “in finding a new

position within [her] work restrictions”; thus, on March 9, 2016,

the 90-day job search expired. (HIC Expiry Letter, Ex. H, ECF No.

77-8, attached to Murray Decl.) Plaintiff testified that despite

identifying a posting for a COT during the HIC Process, she was

told she could not apply for it because of, inter alia, her 25-

pound lifting restriction. (Pl.’s Dep. Tr. II 350:5-23; 351:5-

18.)4

4 In October 2016, Plaintiff applied for Social Security Disability

Insurance (“SSDI”). (Defs.’ 56.1 Stmt. ¶ 105.) Plaintiff’s SSDI

benefits began on April 16, 2019 and were made retroactive to

October 14, 2016. (Pl.’s 56.1 Counterstmt. ¶ 106.)

PROCEDURAL HISTORY

On or around August 3, 2016, Plaintiff filed a charge

with the Equal Employment Opportunities Commission (hereafter the

“EEOC”). On or around August 17, 2017, the EEOC sent Plaintiff a

right-to-sue letter. (Right to Sue Letter, Ex. 1, ECF No. 1-1,

attached to Compl.) Subsequently, on November 14, 2017, Plaintiff

filed her complaint in this action alleging employment

discrimination pursuant to the ADA. (See Compl. § II.)

Specifically, Plaintiff alleges that: (1) Defendants failed to

accommodate her disability; and (2) she experienced unequal terms

and conditions in her employment. (Id. § III. A.) Plaintiff

further alleges that Defendants “[r]efused to supply her with a

van, to pay overtime that was approved/worked, denied equal

training,” and denied the use of “proper equipment equal to

others.” (Id.) Plaintiff demands: (1) reinstatement of her job,

training and tools; (2) restoration of lost wages including lost

raises; and (3) actual damages in the sum of $560,000. (Id. § V.)

On December 22, 2020, Plaintiff moved for summary

judgment on her claims. (See Pl.’s Motion, in toto.) Plaintiff

attached to her motion the declarations of six current/former

Verizon employees (hereafter the “Third-Party Declarations”), the

names of which Plaintiff had not previously disclosed. (See ECF

Nos. 70-2 through 70-7, attached to Pl.’s Motion.) In her initial

disclosures, Plaintiff identified, “CWA Local 1108 Members and

Staff, inclusive” as persons having “knowledge of the facts and

circumstances surrounding Plaintiff’s employment with Verizon,

Plaintiff’s job duties, interactions with management, interactions

with other departments concerning Plaintiff, other companies

contracted by Verizon, and any other information regarding

Plaintiff’s claim.” (Init. Discl., ECF No. 87-2, attached to Pl.’s

Opp’n.) Plaintiff also attached to her Motion a supplemental

declaration from herself. (See ECF No. 70-8, attached to Pl.’s

Motion.)

On April 9, 2021, Defendants cross-moved for summary

judgment. (See Defs.’ Cross-Motion, in toto.) Defendants’ Cross-

Motion for summary judgment was administratively terminated by the

Court to be decided in conjunction with Plaintiff’s Motion. (See

Sept. 30, 2022, Elec. Order.)

ANALYSIS

I. Legal Standard

Pursuant to Rule 56(a), “[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). “A fact is ‘material’ for

these purposes when it might affect the outcome of the suit under

the governing law.” Adamson v. Miller, 808 F. App’x 14, 16 (2d

Cir. 2020). Additionally, “‘[a]n issue of fact is ‘genuine’ if

the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.’” Id. (quoting Jeffreys v. City of N.Y.,

426 F.3d 549, 553 (2d Cir. 2005)). “If, as to the issue on which

summary judgment is sought, 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.” Hetchkop v.

Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997).

Moreover, “the court is not to make assessments of the credibility

of witnesses” on a motion for summary judgment, as “[c]redibility

assessments, choices between conflicting versions of events, and

weighing of the evidence are matters for the jury.” Id.

On a motion for summary judgment the court considers

“the pleadings, depositions, answers to interrogatories and

admissions on file, together with any other firsthand information

including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d

147, 156 (2d Cir. 2011). Further, while the court “may consider

other materials in the record,” it “need consider only the cited

materials” in ruling on a summary judgment motion. FED. R. CIV. P.

56(c)(3); see also Pennington v. D’Ippolito, 855 F. App’x 779, 782

(2d Cir. 2021) (“[I]n ruling on a summary judgment motion the court

need consider only the cited materials in the parties’

submissions.” (internal citations and alterations omitted)).

In reviewing the record, “the court is required to

resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is

sought.” Sheet Metal Workers’ Nat’l Pension Fund v. Vardaris Tech.

Inc., No. 13-CV-5286, 2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23,

2015) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.

1997)). When drawing inferences from evidence in the record in

favor of the non-moving party, however, a court should not accord

the non-moving party the benefit of “unreasonable inferences, or

inferences at war with undisputed facts.” Berk v. St. Vincent’s

Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005)

(quoting County of Suffolk v. Long Island Lighting Co., 907 F.2d

1295, 1318 (2d Cir. 1990)).

“Once the movant has ‘demonstrat[ed] the absence of a

genuine issue of material fact . . . the onus shifts to the party

resisting summary judgment to present evidence sufficient to

satisfy every element of the claim.’” Pennington, 855 F. App’x at

781 (alteration in original) (quoting Holcomb v. Iona Coll., 521

F.3d 130, 137 (2d Cir. 2008)). To do this, “[t]he non-moving party

is required to ‘go beyond the pleadings’ and ‘designate specific

facts showing that there is a genuine issue for trial.’” Id.

“The fact that both sides have moved for summary judgment

does not guarantee that there is no material issue of fact to be

tried and that one side or the other is entitled to that relief.”

Coutard v. Mun. Credit Union, 848 F.3d 102, 114 (2d. Cir. 2017).

Instead, “‘the court must evaluate each party’s motion on its own

merits, taking care in each instance to draw all reasonable

inferences against the party whose motion is under

consideration.’” Id. (quoting Schwabenbauer v. Bd. of Educ., 667

F.2d 305, 314 (2d Cir. 1981)).

The Court notes that, “particularly where motions for

summary judgment are concerned,” Jackson v. Fed. Express, 766 F.3d

189, 195 (2d Cir. 2014), it is “obligated to afford a special

solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d

90, 101 (2d Cir. 2010). Nevertheless, pro se litigants are

“generally . . . required to inform themselves regarding

procedural rules and to comply with them.” Wilson v. Suffolk

County Dist. Att’y, No. 21-CV-4815, 2021 WL 4311155, at *2

(E.D.N.Y. Sept. 22, 2021) (quoting Caidor v. Onondaga County, 517

F.3d 601, 605 (2d Cir. 2008)).

II. Discussion

A. Defendant’s Motion to Strike Supplemental Declarations

First, the Court addresses Defendants’ request to strike

Plaintiff’s supplemental declarations from undisclosed third-party

witnesses.

Rule 26 requires a party to, “without awaiting a

discovery request, provide to the other parties: (i) the name and,

if known, the address and telephone number of each individual

likely to have discoverable information -- along with the subjects

of that information -- that the disclosing party may use to support

its claims or defenses.” FED. R. CIV. P. 26(a)(1)(A)(i). “[T]o

satisfy Rule 26, parties must make an unequivocal statement that

they may rely upon an individual on a motion or at trial.” Lujan

v. Cabana Mgmt., Inc., 284 F.R.D. 50, 73 (E.D.N.Y. 2012) (citations

omitted). “The purpose of this disclosure is to alert an opposing

party of the need to take discovery of the named witness.”

Badolato v. Long Island R.R. Co., No. 14-CV-1528, 2016 WL 6236311,

at *4 (E.D.N.Y. Oct. 25, 2016) (quoting Pal v. N.Y. Univ., No. 06-

CV-5892, 2008 WL 2627614, at *4 (S.D.N.Y. June 30, 2008)).

Pursuant to Rule 37(c)(1), “[i]f a party fails to provide

information or identify a witness as required by Rule

26(a) . . . the party is not allowed to use that information or

witness to supply evidence on a motion . . . unless the failure

was substantially justified or is harmless.” FED R. CIV P. 37(c)(1);

see also Fleming v. Verizon N.Y., Inc., No. 03-CV-5639, 2006 WL

2709766, at *7 (S.D.N.Y. Sept. 22, 2006) (noting that Rule

37(c)(1)’s “preclusionary rule applies on motions for summary

judgment”). “The purpose of the rule is to prevent ‘sandbagging’

an opposing party with new evidence.” Miss Jones LLC v. Shahid,

No. 17-CV-0716, 2022 WL 4642716, at *6 (E.D.N.Y. Sept. 30, 2022)

(citing Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y.

2000)). “The party that violates Rule 26 bears the burden of

showing that its violation was either substantially justified or

harmless.” Avillan v. Donahoe, No. 13-CV-0509, 2015 WL 728169, at

*7 (S.D.N.Y. Feb. 19, 2015) (quoting Agence France Presse v. Morel,

293 F.R.D. 682, 685 (S.D.N.Y. 2013)). However, “[d]espite the

seeming[ly] self-executing nature of the preclusion sanction[,]”

its imposition “remains within the trial court’s discretion.”

Cates v. Trs. of Columbia Univ. in City of N.Y., 330 F.R.D. 369,

373 (S.D.N.Y. 2019).

Failure to comply with Rule 37(c)(1) is considered

harmless where “there is no prejudice to the party entitled to the

disclosure.” Preuss v. Kolmar Labs., Inc., 970 F. Supp. 2d 171,

175 (S.D.N.Y. 2013) (quoting Am. Stock Exch. LLC v. Mopex, Inc.,

215 F.R.D. 87, 93 (S.D.N.Y. 2002)). Additionally, “[s]ubstantial

justification may be demonstrated where there is justification to

a degree that could satisfy a reasonable person that parties could

differ as to whether the party was required to comply with the

disclosure request or if there exists a genuine dispute concerning

compliance.” Badolato, 2016 WL 6236311, at *5 (internal citations

omitted).

In determining whether evidence should be precluded

under Rule 37, courts must consider “(1) the party’s explanation

for the failure to comply with the [disclosure requirement];

(2) the importance of the testimony of the precluded witness[es];

(3) the prejudice suffered by the opposing party as a result of

having to meet the new testimony; and (4) the possibility of a

continuance.” Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir.

2006) (quoting Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc.,

118 F.3d 955, 961 (2d Cir. 1997) (alterations in original)).

“Since Rule 37(c)(1) by its terms does not require a showing of

bad faith,” the Second Circuit has held that such a showing is not

required before evidence may be precluded under Rule 37(c)(1);

however, evidence of bad faith “can be taken into account as part

of the party’s explanation for its failure to comply.” Design

Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006).

1. Plaintiff’s Supplemental Declarations from Third-

Party Witnesses Are Stricken

Plaintiff attached the Third-Party Declarations to her

Motion without previously disclosing the names of the six

current/former Verizon employees. Consequently, pursuant to Rules

26 and 37, Defendants argue that the Third-Party Declarations

should be struck. (Defs.’ Support Memo, ECF No. 76, at 34-35.)

Plaintiff does not deny that she failed to comply with Rule 26 but

counters that her failure to do so was both harmless and justified.

(Pl.’s Opp’n, ECF No. 87, at 25-27.)

Plaintiff avers that her failure to comply with Rule 26

was not the result of “bad faith” or “callous disregard of the

rules” and that she “had previously listed all union employees in

her initial disclosures because she needed to determine which ones

would be willing to speak out.” (Pl.’s Opp’n. at 26.) Relatedly,

Plaintiff argues that “[i]n an effort to gather witness statements

from employees to support her case” she had tried “her best to

find those willing to speak under oath about Verizon’s workplace

environment, but she ran into great difficulty in doing so because

most employees” that had initially been willing to testify

subsequently refused “once they learned of her intentions to sue

Verizon.” (Id.)

The Court finds that Plaintiff violated Rule 26(a)’s

mandatory disclosure requirements by failing to: (1) disclose the

names of the six witnesses pursuant to Rule 26(a); and (2) for

failing to supplement her initial disclosures when she learned of

the names of the witnesses. Moreover, Plaintiff’s explanation for

her failure was neither harmless nor substantially justified. On

this point, Fleming is particularly instructive, where the

plaintiff attached, to her opposition to summary judgment,

declarations from multiple witnesses whose names had not

previously been disclosed pursuant to Rule 26(a)(1)(A). 2006 WL

2709766 at *7. In Fleming, the plaintiff argued that her failure

to comply was “substantially justified” because, while she had

pursued the witnesses diligently, “they had previously been

unwilling to become involved in the litigation.” Id. at *8. The

Fleming Court rejected this argument noting that the defendant was

prejudiced by Plaintiff’s failure since “it [had] made its motion

for summary judgment based on what it thought to be all of the

evidence accumulated in discovery.” Id. The court also found

that the plaintiff’s “excuse that the witnesses’ participation in

the litigation was uncertain” did not “rise to the level of a

‘substantial justification’ for her failure to list them in her

Rule 26(a) disclosures.” Id. Moreover, the Fleming Court rejected

the plaintiff’s contention that, since all the undisclosed

witnesses were employees of the defendant, defendant could have

deposed them at any time noting that this was unreasonable as the

defendant had thousands of employees. Id. at 9.

Here, the Court likewise rejects Plaintiff’s contention

that her failure to comply with Rule 26 is substantially justified

due to her difficulty in finding cooperative witnesses. Discovery

in this matter is closed, and Verizon has made its Cross-Motion

based upon what it believed to be all the evidence in the record.5

Verizon has had no opportunity to depose or otherwise probe the

testimony of these witnesses. Further, the Court finds that

Plaintiff’s disclosure of “CWA Local 1108 Members and Staff,

inclusive” in her initial disclosures does not suffice to provide

Verizon with the requisite notice Rule 26 is designed to provide.

Verizon likely has many employees that are members of this union;

therefore, it would not be reasonable for Verizon to have deposed

5 Discovery was initially scheduled to close on August 13, 2019.

(See June 12, 2019, Am. Sch. Order.) Discovery was re-opened, and

the discovery deadline extended to May 27, 2020, for the limited

purpose of allowing Plaintiff to submit an expert report. (See

Order, ECF No. 51.) No expert report was filed by Plaintiff. (See

Case Docket in toto.)

or interviewed them all on the off chance they uncovered the

employees Plaintiff intended to call to support her claims.

Consequently, the Court strikes the Third-Party

Declarations.

2. Plaintiff’s Supplemental Declaration will be Stricken

to the Extent it is Inconsistent with Her Deposition

Testimony or Provides Only Generalized and Conclusory

Statements Unsupported by Admissible Evidence

“‘The Second Circuit has held that a party cannot

manufacture issues of fact by submitting an affidavit that

contradicts her prior deposition testimony.’” Prophete-Camille v.

Stericycle, Inc., No. 14-CV-7268, 2017 WL 570769, at *5 (E.D.N.Y.

Feb. 13, 2017) (J. Seybert) (citing Gorzynski v. JetBlue Airways

Corp., 596 F.3d 93, 104 (2d Cir. 2010)); see also Moll v.

Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014) (“The

‘sham issue of fact’ doctrine prohibits a party from defeating

summary judgment simply by submitting an affidavit that

contradicts the party’s previous sworn testimony.” (emphasis

omitted)); Crescent Beach Club LLC v. Indian Harbor Ins. Co., 468

F. Supp. 3d 515, 547 (E.D.N.Y. 2020). However, where “the

allegations in the affidavit, rather than contradicting, explain

or amplify prior deposition testimony, then the affidavit may

create a genuine issue of material fact to defeat summary

judgment.” Prophete-Camille, 2017 WL 570769, at *5 (quoting

Gorzynski, 596 F.3d at 104); see also Gilani v. GNOC Corp., No.

04-CV-2935, 2006 WL 1120602, at *3 (E.D.N.Y. Apr. 26, 2006)

(“[The] ‘sham affidavit’ principle does not apply . . . where the

deposition testimony and affidavit are not truly contradictory,”

i.e. “[w]hen an issue was not fully explored in the deposition, or

the deponent’s responses were ambiguous, subsequent clarification

by affidavit is permissible.”) (citing Palazzo v. Corio, 232 F.3d

38, 43 (2d Cir. 2000)).

Defendant argues that Plaintiff’s supplemental

declaration must be stricken or disregarded because it contains

“self-serving, conclusory statements that frequently contradict

[her] prior testimony” and that the timing of Plaintiff’s

submission of the declaration -- after Plaintiff received

Defendants' Rule 56.1 Statement of Facts) -- evinces an intent “to

create triable issues of fact where there are none.” (Defs.’

Support Memo at 34.) Plaintiff counters that her declaration is

“supported by the record in many instances.” (Pl.’s Opp’n. at

25.)

To the extent that it explains or amplifies testimony

previously given, the Court need not strike Plaintiff’s

supplemental declaration in its entirety. However, the Court will

disregard the supplemental declaration “to the extent that [it is]

[] inconsistent with [Plaintiff’s] deposition testimony.” U.S.

All. Fed. Credit Union v. Cumis Ins. Soc., Inc., No. 03-CV-10317,

2009 WL 2914368, at *15 (S.D.N.Y. Sept. 11, 2009). Likewise, the

Court will disregard Plaintiff’s supplemental declaration to the

extent it makes generalized and conclusory statements that are

unsupported by admissible evidence. See id.

B. The ADA Does Not Provide for Individual Liability

As an initial matter, the Individual Defendants argue

that Plaintiff’s claims against them must be dismissed as a matter

of law because the ADA does not provide for individual liability

(See Defs.’ Support Memo at 17); the Court agrees.

Title I, Section 12112(a) provides that, “[n]o covered

entity shall discriminate against a qualified individual on the

basis of disability in regard to job application procedure, the

hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C.A. § 12112(a). Where there

is a violation of Title I, Section 12117(a) provides that “[t]he

powers, remedies, and procedures set forth in sections 2000e-4 –

2000e-9 . . . shall be the powers, remedies, and

procedures . . . to any person alleging discrimination on the

basis of disability.” 42 U.S.C.A. § 12117(a).

In the context of employment discrimination, the Second

Circuit has held that “the retaliation provisions of the ADA, which

explicitly borrows the remedies set forth in Section 2000e-5 [of

Title VII], cannot provide for individual liability.” Spiegel v.

Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010). While “[t]he Second

Circuit has not explicitly addressed whether there is individual

liability under Title I of the ADA,” Milner-Koonce v. Albany City

Sch. Dist., No. 1:21-CV-1271, 2022 WL 7351196, at *5 (N.D.N.Y.

Oct. 13, 2022), “[b]ased on the Second Circuit’s guidance thus

far, district courts under its supervision have routinely held

that there is no individual liability at all under the ADA,” Sears-

Barnett v. Syracuse Cmty. Health Ctr., Inc., 531 F. Supp. 3d 522,

535 (N.D.N.Y. 2021); see also Sosa v. N.Y.C. Dep’t of Educ., 368

F. Supp. 3d 489, 521-23 (E.D.N.Y. 2019) (dismissing ADA claims

against individual defendants because “an individual cannot be

liable for discrimination or retaliation claims under the ADA”);

Blair v. L.I. Child and Fam. Dev. Servs., Inc., No. 16-CV-1591,

2017 WL 722112, at *8 (E.D.N.Y. Jan. 31, 2017) (recommending

dismissal of federal claims to the extent that they were lodged

against individual defendants because “both Title VII and the ADA

prohibit individual liability on behalf of employees”), Report &

Recommendation adopted, 2017 WL 728231 (E.D.N.Y. Feb. 21, 2017);

Castro v. City of N.Y., 24 F. Supp. 3d 250, 259 (E.D.N.Y. 2014)

(holding that the bar on individual liability announced in Spiegel

“extends to claims brought pursuant to . . . Title I of the ADA,”

and collecting cases).

Thus, the Court denies Plaintiff’s motion against the

Individual Defendants, and, for the same reasons, the Court grants

the Individual Defendants’ Cross-Motion.6

C. Any Claims Regarding Conduct that Occurred Prior to

October 8, 2015 are Time-Barred

Next, the Court addresses Defendants’ argument that

“Plaintiff’s claims regarding conduct that occurred prior to

October 8, 2015,” are untimely. (See Defs.’ Support Memo at 33.)

It is a condition precedent to filing a Title VII or ADA

action in federal court that the plaintiff must timely file charges

of discrimination with the EEOC. Van Zant v. KLM Royal Dutch

Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Harris v. City of N.Y.,

186 F.3d 243, 247-48 (2d Cir. 1999). To be timely, charges must

be filed with the EEOC within 300 days of the alleged

discriminatory action. See Harris, 186 F.3d at 247 n.2 (citing 42

U.S.C. § 2000e-5(e)); see also Pilman v. N.Y. City Hous. Auth.,

214 F. Supp. 2d 325, 327 (S.D.N.Y. 2002) (“The ADA incorporates by

reference the limitations period set forth in Title VII (42 U.S.C.

6 Plaintiff’s reliance on Edelman v. Source Healthcare Analytics,

LLC for the proposition that the ADA allows for individual

liability is misplaced. 265 F. Supp. 3d 534 (E.D. Pa. 2017). See

McDowell v. McDonough, No. 21-CV-0338, 2022 WL 4238229, at *1-2

(W.D.N.Y. Aug. 1, 2022) (finding that since Edelman analyzed the

issue of individual liability under the FMLA that it did not

support the proposition that Title VII, a separate and distinct

statute, allowed for individual liability), Report &

Recommendation adopted, 2022 WL 17626519 (W.D.N.Y. Dec. 12, 2022).

The same analysis articulated in McDonough holds true for

individual liability under the ADA.

§ 2000e-5(e)(1)) for employment discrimination actions” (citing 42

U.S.C. § 12117)). Generally, “only incidents that [take] place

within the timely filing period are actionable.” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).

Plaintiff filed her charge of discrimination with both

the EEOC and the New York State Division of Human Rights on August

3, 2016. (See EEOC Charge, Ex. I, ECF No. 81-9, attached to Cagney

Decl.) As such, Defendant argues that any claims regarding conduct

that occurred prior to October 8, 2015 are time-barred. (Defs.’

Support Memo at 33.) Plaintiff counters that the continuous

violation doctrine applies to make her claims timely since “from

March through September 2015,” Defendant engaged in actions that

were part of a “continuous policy of ignoring or refusing

[Plaintiff’s] requests for reasonable accommodation.” (Pl.’s

Support Memo at 20.)

“[D]iscrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely

filed charges.” Morgan, 536 U.S. at 102. Similarly, discrete

acts “which fall outside the limitations period, cannot be brought

within it, even when undertaken pursuant to a general policy that

results in other discrete acts occurring within the limitations

period.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d

Cir. 2012). “Actionable discrete acts are often ‘easy to

identify,’ generally because they involve material changes to an

employee’s conditions of employment.” Tassy v. Buttigieg, 51 F.4th

521, 529 (2d Cir. 2022) (citing Morgan, 536 U.S. at 122).

“Examples include, ‘termination of employment, a demotion

evidenced by a decrease in wage or salary, a less distinguished

title, a material loss of benefits, significantly diminished

material responsibilities, or other indices . . . unique to a

particular situation.’” Id. at 529-30 (citing Terry v. Ashcroft,

336 F.3d 128, 138 (2d. Cir. 2003)). As such, “[e]ach discrete

discriminatory act starts a new clock for filing charges alleging

that act.” Morgan, 536 U.S. at 113.

“The continuing violation doctrine, where applicable,

provides an ‘exception to the normal knew-or-should-have-known

accrual date.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d. Cir.

2015) (citing Harris 186 F.3d at 248). However, “the continuing

violation doctrine is heavily disfavored in the Second Circuit and

courts have been loath to apply it absent a showing of compelling

circumstances.” Trinidad v. N.Y. City Dep’t of Corr., 423 F. Supp.

2d 151, 165 n.11 (S.D.N.Y. 2006) (internal quotation marks

omitted). Generally, the doctrine applies “to claims ‘composed of

a series of separate acts that collectively constitute one unlawful

[] practice.’” Gonzalez, 802 F.3d at 220 (quoting Washington v.

County of Rockland, 373 F.3d 310, 318 (2d Cir. 2004)). Thus,

“[t]he continuing violation doctrine [] applies not to discrete

unlawful acts . . . but to claims that by their nature accrue only

after the plaintiff has been subjected to some threshold amount of

mistreatment.” Id. (internal citation and alterations omitted).

Typically, hostile work environment claims will implicate the

continuous violation doctrine “[b]ecause their very nature

involves repeated conduct [and] the ‘unlawful employment

practice,’ . . . cannot be said to occur on any particular day

[but instead] occurs over a series of days or perhaps years.”

Morgan, 563 U.S. at 103. Additionally, a continuous violation may

also be found where “there is evidence of an ongoing discriminatory

policy or practice.” Harris, 186 F.3d at 248. In such instances,

the time for filing a claim of discrimination “may be delayed until

the last discriminatory act [made] in furtherance of” the

discriminatory practice or policy. Id.

Insofar as Defendant argues that discrete acts of

discrimination or retaliation, which are not part of a continuing

violation, must be time-barred if they occurred prior to October

8, 2015, the Court agrees. In reviewing the parties’ moving

papers, the Court identifies the following allegations of

wrongdoing which should be time-barred unless saved by the

continuing violation doctrine:

(1) Plaintiff’s request for a bucket truck

and the necessary training, made on

February 23, 2015, and denied by Monfredo

(Pl.’s Support Memo at 8);

(2) Plaintiff’s reassignment to the Business

Group under Alagna’s supervision;

Alagna’s assigning Plaintiff to aerial,

as opposed to groundwork, and the second

denial of the use of a bucket truck, all

occurring around the end of April, 2015

(id. at 8-9);

(3) Alagna’s denial of tools, equipment, a

lighter six-foot ladder, all occurring

sometime in May 2015 (id. at 9);

(4) Alagna’s refusal to provide Plaintiff

with various tools, including a T-Berd

meter, and a lighter ladder occurring in

May or June 2015 (id.);

(5) Plaintiff’s unofficial downgrade to

helper by Alagna in July 2015 (id. at 9-

10);

(6) Alagna’s permanent downgrade of

Plaintiff to the helper role occurring on

August 6, 2015 (id. at 10); and

(7) the denial of overtime work occurring

sometime in August 2015 (Id. at 10-11).

“[A]n employer’s rejection of an employee’s proposed

accommodation . . . does not give rise to a continuing violation.”

Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir.

2003); see also Francis v. Wyckoff Heights Med. Ctr., 177 F. Supp.

3d 754, 776 (E.D.N.Y. 2016). Instead, “the rejection is the sort

of ‘discrete act’ that must be the subject of a complaint to the

EEOC within 300 days.” Elmenayer, 318 F.3d at 135. This is true

since “[t]he rejection of a proposed accommodation is a single

completed action when taken, quite unlike the ‘series of separate

acts’ that constitute a hostile work environment.” Id.; see also

Whalen v. CSC TKR, LLC, No. 11-CV-1834, 2011 WL 6965740, at *3-4

(S.D.N.Y. Dec. 28, 2011) (finding that “plaintiff’s repeated

requests for the same accommodation do not change the fact that he

filed his EEOC claim more than 300 days after he received

notice . . . of [Defendant’s] denial of his requested

accommodation.”). Additionally, “[i]t is well-established that

transfers, demotions, failure to compensate adequately, and

failure to promote are all discreet acts which do not constitute

a continuing violation.” Crosland v. City of N.Y., 140 F. Supp.

2d 300, 308 (S.D.N.Y. 2001), aff’d sub nom. Crosland v. Safir, 54

F. App’x 504 (2d Cir. 2002); see also Elzeneiny v. Dist. of

Columbia, 125 F. Supp. 3d 18, 35 (D.D.C. 2015) (noting that a

“failure to provide . . . tools was a discrete act of

discrimination”).

Plaintiff’s argument that it was reasonable for her to

“assume that some or all of her accommodation requests were in the

process of being considered” from Fall 2014 through November 2015

and had not yet been “fully rejected” is unavailing and does not

implicate the continuing violation doctrine. (Pl.’s Support Memo

at 20.) When Monfredo denied her request for a bucket truck,

Plaintiff was on notice that Verizon would not be accommodating

her in this way as of February 2015.7 As such, any potential ADA

7 To the extent Plaintiff may have argued that she did not have

notice that Verizon would not be accommodating her bucket truck

request in February 2015 because she did not consider Monfredo’s

denial of her request a discriminatory action, Plaintiff still had

claim based upon the denial of a bucket truck accrued the day

Plaintiff received notice from Monfredo that she would not be

accommodated in this manner. See Elmenayer, 318 F.3d at 134

(holding that an unaccepted accommodation is a discrete act and,

as such, timeliness should be “measured from the date when the

proposed accommodation was rejected”); see also Whalen, 2011 WL

6965740, at *3-4 (finding that “plaintiff’s ADA claim accrued [when

his employer] first denied his requests for a different work

venue”). Similarly, Plaintiff was on notice in May or June 2015

that Verizon would not accommodate Plaintiff’s lifting or climbing

restrictions by procuring her a 25-pound ladder when Alagna

rejected Plaintiff’s request. Indeed, the same is true for all of

Plaintiff’s requested and subsequently denied accommodations,

demotions, and rejections of overtime requests.

Generally, a failure to train is also a discrete act.

See Tassy v. Buttigieg, 540 F. Supp. 3d 228, 235 (E.D.N.Y. 2021),

aff’d 51 F.4th 521 (collecting cases). However, where coupled

with other allegations that a work environment was objectively

severe and pervasive, such failure to train claims should instead

be analyzed as part of a hostile work environment claim. See

notice as of April 2015 when Alagna denied the bucket truck request

for a second time. Since Plaintiff considered Alagna’s denial to

be discriminatory, this conduct should have been the subject of an

EEOC complaint when it occurred. (See Pl.’s 56.1 Counterstmt.

¶ 58.)

Tassy, 51 F.4th at 530; see also Davis-Garett v. Urb. Outfitters,

Inc., 921 F.3d 30, 47 (2d Cir. 2019); Gregory v. Daly, 243 F.3d

687, 693 (2d Cir. 2001).

Here, Plaintiff brings no claims and alleges no facts

that she was forced to endure a hostile work environment.8

Consequently, the Court finds that Plaintiff’s failure to train

claims are discrete acts of discrimination that do not implicate

the continuous violation doctrine. Consequently, the Court finds

that the following acts are likewise time-barred since any claim

based upon them accrued from the date Plaintiff received notice of

these denials:

(1) Alagna’s denial of refresher training

occurring sometime in May 2015 (Pl.’s

Support Memo at 9); and

(2) Alagna’s refusal to provide training to

Plaintiff on account of her inability to

climb occurring on August 6, 2015 (id. at

10).

However, Plaintiff is not barred from using these prior

acts as background evidence to support her timely claims. Davis-

Garett, 921 F.3d at 42 (citing Morgan, 536 U.S. at 113).

8 While Plaintiff testified that she had previously been harassed

by her fellow co-workers and that she had subsequently reported

this harassment to Alagna, the harassment directed at her was not

due to Plaintiff’s disability or restrictions, but because her co-

workers perceived her to be a “runner.” (See Pl.’s Dep. Tr. I

64:24-65:19.) That is, earlier in her career, Plaintiff was

allegedly targeted by her co-workers because they believed she was

completing too many jobs as compared to them and was, thus, making

them look bad. (Id. at 65-66:16-5.)

D. Plaintiff’s ADA Claims

Generally, the ADA prohibits discrimination “against a

qualified individual on the basis of disability in regard to job

application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms,

conditions and privileges of employment.” 42 U.S.C. § 12112(a).

Discrimination is defined as, among other things, “limiting,

segregating, or classifying a job applicant or employee in a way

that adversely affects the opportunities or status of such

applicant or employee because of the disability of such applicant

or employee” and “excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the known disability

of an individual with whom the qualified individual is known to

have a relationship or association.” 41 U.S.C. § 12112(b)(1),

(4). Furthermore, employers are required to make “reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an

applicant or employee, unless such covered entity can demonstrate

that the accommodation would impose an undue hardship on the

operation of the business of such covered entity.” 42 U.S.C.

§ 12112(b)(5)(A).

Disability discrimination is analyzed under “the burden-

shifting framework articulated in McDonnell Douglas Corp. v.

Green.” 411 U.S. 792 (1973). Bey v. City of N.Y., 999 F.3d 157,

165 (2d Cir. 2021). Under the McDonnell Douglas framework: (1) the

plaintiff bears the initial burden of establishing her prima facie

case; (2) the employer must then offer, through the introduction

of admissible evidence, a nondiscriminatory reason for the

allegedly discriminatory action; and then (3) the onus shifts back

to the plaintiff to “produce evidence and carry the burden of

persuasion that the proffered reason is a pretext.” McBride v.

BIC Consumer Prods. Mfg. Co., Inc., 583 F. 3d 92, 96 (2d Cir.

2009); see also Brizzi v. Utica Mut. Ins. Co., 529 F. Supp. 3d 44,

54 (E.D.N.Y. 2021). Generally, “[a] qualified individual can base

a discrimination claim on any of three available theories:

(1) intentional discrimination (disparate treatment);

(2) disparate impact; and (3) failure to make a reasonable

accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009)

(citation omitted).

Here, Plaintiff’s posits two theories of discrimination:

(1) that Verizon failed to make her reasonable accommodations; and

(2) disparate treatment. (See Pl.’s Support Memo at 20-30.) The

Court addresses Plaintiff’s failure to accommodate claims first.

1. Plaintiff’s Failure to Accommodate Claim9

A prima facie case for failure to provide a reasonable

accommodation under the ADA, requires Plaintiff to show by a

preponderance of the evidence that: (1) she “is a person with a

disability under the meaning of the ADA”; (2) Defendant is “an

employer covered by the statute [that] had notice of [her]

disability; (3) with reasonable accommodation, [P]laintiff could

perform the essential functions of the job at issue;” and

(4) Defendant, as Plaintiff’s employer, “refused to make such

accommodations.” McMillan v. City of N.Y., 711 F.3d 120, 125-26

(2d Cir. 2013); see also Woolf v. Strada, 949 F.3d 89, 93 (2d Cir.

2020)

Here, the Company neither disputes that it is an employer

that is subject to the ADA, nor that Plaintiff is a person that

has a disability within the meaning of the ADA. (See Defs.’

Support Memo in toto.) Instead, the central questions revolve

around the third and fourth factors with particular emphasis on

the third, that is, whether Plaintiff “was [] qualified to perform

9 While Defendants note that Plaintiff applied for and received

SSDI, the medical restrictions discussed by the administrative

judge in the SSDI opinion are largely consistent with the medical

restrictions Plaintiff had during the relevant time period. The

Court notes further that unlike an ADA claim, “‘[t]he Social

Security Act does not concern itself with reasonable

accommodation.’” Morse v. JetBlue Airway Corp., 941 F. Supp. 2d

274, 290 (E.D.N.Y. 2013) (citing DeRosa v. Nat’l Envelope Corp.,

595 F.3d 99, 104 (2d Cir. 2010)).

the essential functions of [her] job, with or without reasonable

accommodation.” (Id. at 18.)

“An employee is qualified for a position only if she can

perform its essential functions.” McBride, 583 F.3d at 98. While

the ADA does not define the term “essential functions,” the EEOC

has promulgated regulations that indicate the term “encompasses

‘the fundamental job duties of the employment position.’” Id.

(quoting 29 C.F.R. § 1630.2(n)(1)). Ultimately, whether a given

task “constitutes an essential function depends on the totality of

the circumstances.” Rodal v. Anesthesia Grp. of Onondaga, P.C.,

369 F.3d 113, 120 (2d Cir. 2004). However, evidence of whether a

particular duty is an essential function under the ADA may include:

(i) The employer’s judgment as to which

functions are essential; (ii) Written job

descriptions prepared before advertising or

interviewing applicants for the job; (iii) The

amount of time spent on the job performing the

function; (iv) The consequences of not

requiring the incumbent to perform the

function; (v) The terms of a collective

bargaining agreement; (vi) The work experience

of past incumbents in the job; and/or (vii)

The current work experience of incumbents in

similar jobs.

Jones v. N.Y.C. Transit Auth., 838 F. App’x 642, 645 (2d Cir.

2021) (citing 29 C.F.R. § 1630.2(n)(3)).

The inquiry into whether a particular function is

essential for any given position is a fact intensive one. Hunt-

Watts v. Nassau Health Care Corp., 43 F. Supp. 3d 119, 127

(E.D.N.Y. 2014). Nevertheless, “[a] court must give considerable

deference to an employer’s judgment regarding what functions are

essential for service in a particular position.” Shannon v.

N.Y.C. Transit Auth., 332 F.3d 95, 100 (citing D’Amico v. City of

N.Y., 132 F.3d 145, 151 (2d Cir. 1998)).

i. Climbing is an Essential Function of the FT Role

Plaintiff argues that climbing is not an essential

function of the FT role. (Pl.’s Support Memo at 12-13.) Plaintiff

contends that while Section F of the FT Description articulates

climbing as a requirement, that the FT Description applies broadly

to all roles under the moniker of FT and does not articulate the

essential functions of the “Specials” FT. (Pl.’s Reply at 12;

Pl.’s Dep. Tr. I 213:20-214:19.)

Additionally, despite admitting that climbing was part

of her job, Plaintiff avers that the percentage of time she

actually spent on pole jobs was low and that such jobs came in

“less than once [per] week.” (Pl.’s Reply at 12-13; Pl.’s Dep.

Tr. I 223:17-22.) Plaintiff’s argument is unavailing. Deposition

testimony by Alagna and the Plaintiff establishes that climbing is

a skill that could be required from the FT at any time, since one

could not accurately predict when it would be necessary.10

10 Indeed, as part of their initial training, new FTs are required

to attend climbing classes. Plaintiff’s own training records

reflect that she was required to take pole climbing classes prior

Moreover, there is undisputed testimony in the record

that, at least in 2015, there was an increasing volume of pole

work coming into Defendant’s business. Additionally, Plaintiff’s

testimony surrounding this period corroborates Defendant’s

argument that there was an increase in pole work and, thus,

climbing, in 2015. Due to her no-climbing restrictions, Plaintiff

was unable to complete these jobs. (Id. at 205:14-20.) Plaintiff

offers no evidence to refute that in 2015 there was an increased

number of jobs requiring climbing or Alagna’s estimations on the

matter. Similarly, Plaintiff offers no evidence that once

reassigned back to Specials North in 2015, the volume of pole work

decreased. Rather, the record reflects the opposite: In 2015,

there was an increase in work that required climbing and that

because of Plaintiff’s inability to climb, her supervisor

struggled to assign her work.

Thus, from the record evidence, including Plaintiff’s

admissions about climbing, the Court finds that climbing, whether

by use of a pole or a ladder, is an essential function of the FT

role. The Court further finds that Plaintiff was unable to perform

this essential function without an accommodation.

to becoming an FT in 2006. (See Pl.’s Training Records, Ex. 25,

ECF No. 71-6, attached to Pl.’s 56.1 Counterstmt.)

ii. Lifting At Least 60-Pounds is Also an Essential

Function of the FT Role

Additionally, the parties dispute the extent to which

Plaintiff’s role required her to be able to “[m]ove[] and/or

lift[] 100 pounds or more” as articulated in Section G of the FT

Description. In her deposition, Plaintiff admitted that she could

not lift 100-pounds but she argues that she was never required to

lift this much in her role as an FT; instead, she never had to

lift more than 60-pounds. There is some interplay between the

lifting requirement and the climbing requirements as in the

present context, they are inter-dependent. Given the Court’s

previous finding that climbing is an essential function of the FT

role, it holds that the ability to carry the tools necessary to

facilitate the FT’s ability to climb is also an essential function

of the role. The Court need not determine the exact poundage that

encompasses this requirement; instead, the Court construes

Plaintiff’s argument on this point as an admission that an

essential function of the FT is to lift at least 60-pounds.

Since it is undisputed that beginning approximately in

2007 Plaintiff has had medical restrictions that preclude her from

“lifting, pushing, or pulling over 25-pounds,” the Court likewise

finds that, without accommodations, Plaintiff cannot perform this

essential function of the FT role either. Thus, since the Court

finds that both: (1) climbing; and (2) lifting at least 60-pounds,

are essential functions of the FT role, and that Plaintiff can do

neither without accommodation, the next issue to address is

whether Plaintiff can show that she would have been able to perform

these functions with some sort of reasonable accommodation.

iii. Plaintiff’s Proposed “Reasonable” Accommodations

In discrimination claims based both on adverse

employment actions and on failures to accommodate, the plaintiff

“bears the burden of both production and persuasion as to the

existence of some accommodation that would allow her to perform

the essential functions of her employment, including the existence

of a vacant position for which she is qualified.” McBride, 583

F.3d at 97 (citing Jackan v. N.Y.S. Dep’t of Labor, 205 F.3d 562,

566 (2d Cir. 2000)); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d

131, 137-38 (2d Cir. 1995)). Plaintiff’s burden to demonstrate

the existence of a reasonable accommodation “is not a heavy one,

requiring only that the plaintiff ‘suggest the existence of a

plausible accommodation, the costs of which, facially, do not

clearly exceed its benefits.’” Francis, 177 F. Supp. 3d at 771

(citing Borkowski, 63 F.3d at 138). A reasonable accommodation

“may include adjustments to work schedules or other job

restructuring.” McMillan, 711 F.3d at 127 (citing 45 C.F.R.

§ 84.12(b)); see also 29 C.F.R. § 1630.2(o)(2). However, “[a]

reasonable accommodation can never involve the elimination of an

essential function of a job.” McMillan, 711 F.3d at 127 (quoting

Shannon, 332 F.3d at 100). Ultimately, the process of determining

a reasonable accommodation is a collaborative one between employer

and employee in which “[b]oth parties must participate.” Goonan

v. Fed. Reserve Bank of N.Y., 916 F. Supp. 2d 470, 480 (S.D.N.Y.

2013).

(a) Even if timely, None of Plaintiff’s

Requested Accommodations Would Aid Her in

Performing the Essential Functions of the

FT Role

As an initial matter, Plaintiff argues that her

inability to climb and her lifting restrictions could have been

reasonably accommodated by Verizon if it had provided her with a

bucket truck. (See Pl.’s Support Memo, at 25-26; Pl.’s Reply at

13-15.) Even if this denied accommodation was not time-barred,

which it is, a bucket truck would not have enabled Plaintiff to

effectively carry out and complete aerial work as an FT. Plaintiff

testified that to complete a pole job, the FT must climb the pole

manually if there are steps; where there are no steps and a

connection needs to be made to the pole, Plaintiff testified that

the FT would have to use the 24-foot ladder. (Pl. Dep. Tr. I

96:11-21.) In testifying as to her understanding of pole jobs,

Plaintiff stated that a bucket truck would be used where the pole

was designated a “no-climb pole.” (Id.)

Evidence in the record establishes, and Plaintiff

admits, Plaintiff was not trained to use a bucket truck and that,

most importantly, a bucket truck cannot handle all types of aerial

job. As such, depending upon environmental or other factors, the

usage of a bucket truck would not always obfuscate the need for an

FT to climb. Even if the bucket truck request was a reasonable

accommodation, which this Court finds that it is not, the record

reflects that Verizon had nondiscriminatory reasons for denying

Plaintiff’s request, which was accepted by Plaintiff, namely that

there were limited bucket trucks available and that those that

were available were primarily used to repair cable in a manner

inconsistent with Plaintiff’s restrictions. In circumstances

similar to Plaintiff’s, courts have held that a request for a

bucket truck is not a reasonable accommodation. Klik v. Verizon

Va. Inc., No. 6:15-CV-0002, 2016 WL 917499, (W.D. Va. Mar. 8, 2016)

(finding that a bucket truck request is an unreasonable

accommodation for an employee’s inability to climb since “due to

terrain, the bucket truck becomes useless at some job sites” and

that “it would not be reasonable to take the only working bucket

truck away from a fully functioning employee that can do every job

and give it to an employee that is limited and may or may not be

able to perform the task upon arriving at the location”).11

11 While the court in Shannon v. Verizon N.Y., Inc. found that a

request for a bucket truck was an accommodation that met the facial

reasonableness standard, the Shannon court failed to expound upon

the reasoning behind its decision. For this reason, the Court

declines to follow it. 519 F. Supp. 2d 304, 309 (N.D.N.Y. 2007).

Likewise, Plaintiff’s argument that she requested and

was denied a lighter ladder, even if not time barred, is not a

reasonable accommodation that would have allowed her to perform

aerial work. While Plaintiff may have, at one point, had a

25-pound six-foot A-Frame ladder, the record evidence establishes

that FTs are required to use various tools to facilitate their

climbing, including a 24-foot ladder. Thus, even if Plaintiff’s

A-Frame ladder allowed her to engage in some climbing, it would

not have allowed her to climb poles or work aloft on anything

higher than six-foot above head height. Moreover, Plaintiff’s

restrictions actually state that she cannot climb, at all,

rendering her lighter-ladder accommodation argument without merit.

(See Dzugan Dep. Tr. 174:16-175:2) (testifying that he questioned

Plaintiff’s use of the 25-pound, six-foot ladder because

Plaintiff’s restrictions state “no climbing”).

Plaintiff argues in the alternative that Verizon could

have accommodated her by continuing to limit her to groundwork, as

they had done until May 2015. (Pl.’s Support Memo at 10, 23.)

Again, even if this were a timely claim, a reasonable accommodation

cannot eliminate an essential function of the role. See McMillan,

711 F.3d at 127. The Court has already found that climbing is an

essential function of the FT role and, as such, limiting Plaintiff

to groundwork would not be a reasonable accommodation. Moreover,

the fact that Verizon may have provided unreasonable

accommodations in the past does not mean that it must continue to

provide such accommodations. See Uhl v. Home Depot U.S.A., Inc.,

No. 08-CV-3064, 2010 WL 3282611, at *5 (E.D.N.Y. Aug, 13, 2010)

(finding that where an employer has “exceeded its legal

obligations, by affording [an employee] a more than reasonable

accommodation” in the past, the employer is not compelled “to

continue to accommodate [that employee] beyond what the law

requires” (emphases in original)).

(b) Defendant Placed Plaintiff Into its HIC

Program But Was Unable to Accommodate

Plaintiff With a Transfer

Without determining the timeliness of Plaintiff’s

allegations surrounding Verizon’s alleged failures to timely

implement the HIC Process, the Court finds that Plaintiff was

placed into the HIC Program and that Verizon attempted to transfer

her to other departments. Further, the job opportunities which

Plaintiff states she missed out on were positions for which

Plaintiff was unqualified.

In support of her failure to accommodate claims and her

disparate treatment claims, Plaintiff argues that Verizon failed

to properly initiate the HIC Process and subsequently engage with

Plaintiff to help find either reasonable accommodations for her or

a transfer. (Pl.’s Reply at 17-18.) Further, Plaintiff alleges

that due to the confusion surrounding when exactly the HIC Program

was initiated, she missed out on open positions at the CO for which

she should have received priority consideration. (Id.; Pl.’s

Support Memo, at 13.) Plaintiff argues that a transfer to the CO

was a reasonable accommodation that Verizon could have made to

accommodate her restrictions. (Pl.’s Reply at 17-18.)

The written job description for the COT role includes:

a 60-pound lifting requirement, the requirement to use light-to-

heavy equipment and ladders; and being able to climb poles.

Additionally, Plaintiff’s testimony that COTs use smaller ladders

is in direct contrast with Alagna’s testimony that COTs’ ladders

can weigh from 50 to 75 pounds. As such, Plaintiff’s conclusory

assertions that the CO position “did not implicate any of

[Plaintiff’s] restrictions” is unavailing. Plaintiff offers no

evidence to support her assertions that she could have performed

the role of a COT with her restrictions, other than her own

anecdotal experiences during the time she spent there on loan.

However, Monfredo states that Plaintiff’s experience while on loan

in 2011 was not reflective of the typical day-to-day work of a

COT. (Monfredo Decl. ¶¶ 3, 4.) Given the differences between the

work and skills conducted by FTs and COTs Monfredo highlighted

further that, even if Plaintiff could have performed the essential

functions of the COT Role, which she could not, that it would have

required Verizon to provide Plaintiff with “significant training

to be considered qualified.” (Id. at ¶ 7.) Plaintiff’s anecdotal

evidence, in light of Verizon’s competent evidence, is

insufficient to defeat summary judgment.

Regarding Plaintiff’s argument that a transfer to

another open role could have been an appropriate accommodation,

the record shows that there was an active search for alternative

positions within Verizon, from June 2015 through August 2015, on

Plaintiff’s behalf but that no department could accommodate her

with her restrictions. Therefore, Plaintiff’s speculative

argument is unavailing.

Additionally, Plaintiff makes much of the fact that

Murray applied to MetLife to substantiate Plaintiff’s restrictions

for one-year and speculates that Murray’s motive in doing so was

to place Plaintiff on short-term disability. (Pl.’s Support Memo

at 12, 14.) Plaintiff offers no evidence to substantiate her

speculation on this issue. Regardless, Plaintiff’s restrictions

were medically substantiated by MetLife, Verizon’s disability

coordinator, based upon Plaintiff’s own medical records. (Pl.’s

Dep. Tr. II 329:17-330:5.) The record evidence shows that, while

procedurally some of the HIC forms were missing certain

information, including that Plaintiff understood the HIC process,

Verizon substantially complied with its internal procedures, and

it ultimately did insert Plaintiff into the HIC Program.12 Contra

12 Plaintiff’s argument that Verizon failed to engage in an

interactive process with her once she was in the HIC Program is

Goonan v. Fed. Rsrv. Bank of N.Y., 916 F. Supp. 2d 470 (S.D.N.Y.

2013) (finding that Federal Reserve took adverse action against

employee when it refused to allow the employee to participate in

a policy that it afforded to a significant number of other

employees). Further, the procedural deficiencies in Plaintiff’s

HI-3 form are immaterial since she received notice via letter that

accurately described the process and Plaintiff’s responsibilities

to actively engage in that process as well as providing contact

information if Plaintiff had any queries.

As such, Plaintiff’s motion for summary judgment on her

failure to accommodate claim is denied, and Defendant’s motion for

summary judgment on Plaintiff’s failure to accommodate claim is

granted.

2. Plaintiff’s Disparate Treatment Claim must 13

Under the McDonnell Douglas framework, Plaintiff bears

the initial burden of establishing, by a preponderance of the

also unavailing. See McBride, 583 F.3d at 101 (Holding that an

employer’s failure to engage in an interactive process “does

not form the basis of a claim under the ADA and evidence thereof

does not allow a plaintiff to avoid summary judgment” unless

plaintiff can establish that “with the aid of some identified

accommodation, she was qualified for the position at issue”).

13 To the extent Plaintiff alleged that she was not paid for certain

days on March 2, and March 3 2015, and that she was denied

overtime opportunities in August 2015, the Court construed these

allegations as evidence of her disparate treatment claim.

Regardless, like the majority of Plaintiff’s allegations, these

allegations are also time-barred since the complained of conduct

occurred prior to October 8, 2015.

evidence, her prima facie claim of discrimination by disparate

treatment. Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d

Cir. 2019). To establish “a prima facie case of discrimination

based on disparate treatment” Plaintiff must show that:

“‘(1) [her] employer is subject to the ADA; (2) [she] was disabled

within the meaning of the ADA; (3) [she] was otherwise qualified

to perform the essential functions oh [her] job, with or without

reasonable accommodation; and (4) [she] suffered adverse

employment action because of [her] disability.” Id. (citing

McMillan, 711 F.3d at 125.)

Here, since the Court has already found that Plaintiff

was not “otherwise qualified to perform the essential functions of

[her] job, with or without reasonable accommodation,” (see supra

Discussion Part II-D), Plaintiff’s disparate treatment claim must

fail. Consequently, Plaintiff’s motion for summary judgment on

her disparate treatment claims is denied, and Defendant’s motion

for summary judgment on Plaintiff’s disparate treatment claims is

granted.

To the extent not explicitly addressed, the Court has

considered the remainder of Plaintiff’s arguments both in support

of her motion, and opposing the grant of Defendants’ Cross-Motion

and it finds them to be without merit.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that

Plaintiff’s Motion (ECF No. 70) is DENIED.

IT IS FURTHER ORDERED that the Defendants’ Cross-Motion (ECF

No. 76) is GRANTED.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: February 9, 2023

Central Islip, New York