The opinion
Nelson v WW Intl., Inc.
2024 NY Slip Op 32182(U)
June 28, 2024
Supreme Court, New York County
Docket Number: Index No. 155745/2020
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 155745/2020
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 06/28/2024
SUPREME COURT OF THE STA TE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARYV. ROSADO PART 33M
Justice
------------------------------------------------------X INDEX NO. 155745/2020
ISAAC NELSON MOTION DATE 05/04/2024
Plaintiff,
MOTION SEQ. NO. 001
-v-
ww INTERNATIONAL, INC., DECISION + ORDER ON
MOTION
Defendant.
-------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21,
22,23,24,25,26,27,28,29,30, 31, 32, 33,34, 35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,
50,51,52,53,54, 55,56,57,58,59,60,61,62,63,64,65,66,67,68,69, 70, 71, 72, 73, 74, 75, 76, 77,
78, 79,80,81,82,83,84,85, 87,88,89,90
were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, Defendant WW International, Inc. 's ("Defendant" or
"Weight Watchers") motion for summary judgment dismissing Plaintiff Isaac Nelson's
(''Plaintiff') complaint is granted in part and denied in part.
I. Background
This is an employment discrimination action alleging violations of the New York City
Human Rights Law ("NYCHRL") (see generally NYSCEF Doc. 7). Plaintiff joined Weight
Watchers in 2010 (NYSCEF Doc. 51 at, 6). Plaintiff received positive feedback and performance
reviews from 2011 until 2016 (id. at ,r,i 6-15). In February of 2016, Plaintiff was diagnosed with
non-Hodgkins Lymphoma which required six rounds of chemotherapy (id. at ,i 16). This lowered
Plaintiff's immune system and Defendant agreed to allow Plaintiff to work remotely.
After Plaintiff completed chemotherapy he started to return to the office in September 2016
but would get sick each time he worked from the office. Plaintiffs manager informally approved
a flexible work from home schedule. Plaintiff's manager changed to Diane McGrath ("McGrath")
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in the summer of 2017. McGrath knew of Plaintiff's medical situation and did not express any
immediate concerns - in fact McGrath rated Plaintiff as a "valued contributor."
In January of 2018, McGrath asked Plaintiff to take on additional responsibilities. In 2018,
Plaintiff again received a positive performance review and was rated as a "valued contributor."
Towards the end of 2018, McGrath began to request Plaintiff return to work in the office.
McGrath's supervisor, Wesley Moon ("Moon") implemented a restrictive work from home policy.
Plaintiff's daughter was born in June of 2019 and he took four weeks of paternity leave.
When he returned from paternity leave, Mcgrath told Plaintiff that his teammates were
uncomfortable with him not being in the office. In August of 2019, Moon required, for the first
time a doctor's note for Plaintiff to continue working from home. Plaintiff produced a doctor's
note on October 17, 2019 (NYSCEF Doc. 36). On October 30, 2019, Defendant's HR Department
sought clarification from Plaintiff's doctor regarding whether working from home was "required."
(NYSCEF Doc. 38). Plaintiff's Doctor second note stated working from home was required
(NYSCEF Doc. 39).
On November 13, 2019, Plaintiff was issued a performance improvement plan ("PIP"). The
PIP was apparently the result of failures with the Broadleaf project, which Plaintiff worked on.
After a few PIP meetings, Plaintiff was invited to a zoom meeting on January 2, 2020. McGrath
told Plaintiff that the eCommerce launch was a mess and Plaintiff did not follow up on the PIP.
Plaintiff was terminated on this date. Two months after Plaintiff's termination, the Covid-19
pandemic happened, and Defendant became a "remote first company."
II. Defendant's Motion
Defendant moves for summary judgment seeking dismissal of Plaintiff's complaint in its
entirety. Defendant argues it is entitled to summary judgment on Plaintiff's caregiver status claim
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because there is no causal nexus between his status as a caregiver and the adverse employment
action. Defendant cites to Plaintiffs deposition testimony wherein he concedes that Defendant was
supportive of Plaintiff taking parental leave. Defendant argues it is entitled to summary judgment
dismissing his disability discrimination claim because there is no evidence anyone made any
disparaging remarks about his disability and because Defendant allowed Plaintiff to work from
home for over three years prior to being placed on a PIP. Defendant argues it has presented
legitimate, non-discriminatory inference for its termination decision. Finally, Defendant argues it
is entitled to dismissal of Plaintiffs cooperative dialogue claim because he was granted an
accommodation for three years prior to his termination.
In opposition, Plaintiff argues that this case revolves around the intent and credibility of
witnesses and therefore is not ripe for disposition on summary judgment. Plaintiff argues that under
the NYCHRL, he must only show that he was treated "less well" at least in part due to his disability.
Plaintiff points to Slack message exchanges from Moon as showing evidence of discriminatory
intent. Plaintiff argues that under the NYCHRL, he need only show that his disability was a
motivating factor for his termination. Plaintiff also argues that Defendant never engaged in a
dialogue about his accommodation. Finally, Plaintiff argues he established his claim of caregiver
discrimination because there is an issue of fact as to whether Defendants falsely told Plaintiff his
teammates were "uncomfortable" with him being out of the office while he was on paternity leave.
In reply, Defendant argues that there can be no claim for caregiver discrimination since
discussion about Plaintiff returning to the office occurred before he took parental leave. Defendant
argues that Plaintiff only proffers speculation of disability-based animus. Defendant further argues
there is no claim based on a violation of the NYCHRL's cooperative dialogue requirements
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because Plaintiff was at all times granted a work from home accommodation until he was
terminated.
III. Discussion
A. Standard
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial. See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];
Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1 st Dept 2003]). Mere conclusions of
law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North
Am. v Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]).
To establish a claim for discrimination under the NYCHRL, a plaintiff must prove that he
was (a) a member of a protected class; (b) was qualified for the position; (c) suffered an adverse
employment action; and (d) establish that the adverse action occurred under circumstances giving
rise to an inference of discrimination (Hribovsek v United Cerebral Palsy ofNYC, 223 AD3d 618,
619 [1st Dept 2024 ]). The standard for determining liability for discrimination-based claims under
the NYCHRL is to ensure that discrimination plays no role in the disparate treatment of similarly
situated individuals in the workplace (Williams v New York City Housing Authority, 61 AD3d 62,
76 [1st Dept 2009]). Courts are instructed to interpret the NYCHRL independently of state and
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federal anti-discrimination laws to create an independent body of jurisprudence that is maximally
protective of civil rights (see New York Local Law 35 § 1).
B. Plaintiffs Disability Discrimination and Cooperative Dialogue Claims
Defendant's motion to dismiss Plaintiffs alleged violation of the NYCHRL based on
disability discrimination is denied. There is no dispute that Plaintiff, who was
immunocompromised during recovery from leukemia, suffered from a disability and is therefore
a member of a protected class. Defendant argues that the adverse discrimination Plaintiff suffered
did not occur under circumstances giving rise to an inference of discrimination. "Discriminatory
motivation may be inferred from, among other things, invidious comments about others in the
employee's protected group, or the more favorable treatment of employees not in the protected
group" (Rodriguez v New York City Haus. Auth., 225 AD3d 458, 459 [1st Dept 2024] quoting
Mazzeo v Mnuchin, 751 Fed Appx 13, 14-15 [2d Cir 2018]).
A plaintiff may prove a disability discrimination claim under the NYCHRL if he proves
that unlawful discrimination was one of the motivating factors, even if it was not the sole
motivating factor, for an adverse employment discrimination (Watson v Emblem Health Services,
158 AD3d 179 [1st Dept 2018]). A plaintiff may defeat summary judgment by offering some
evidence that at least one of the reasons proffered by a defendant for the adverse employment
action is false, misleading, or incomplete (id.). This is also known as the "mixed motive" standard
(Cadet-Legros v New York University Hosp. Center, 135 AD3d 196 [1st Dept 2015]).
Here, there is evidence from Slack messages between McGrath and Moon that they knew
Plaintiff continued to suffer from a disability when McGrath stated, "I genuinely believe that he
does not feel well most of the time" (NYSCEF Doc. 68 at Bates No. WW002273). Nonetheless,
in subsequent messages, in discussing the recent development of Plaintiff to provide a doctor's
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note to continue his accommodation, McGrath stated "[h]e must be freaking out - now he knows
that this has become an HR Issue." Moon responded "I mean, I hope he understands. And just gets
his a __ into the office." Moon went on to state "in the meantime I will start drafting the PIP ... "
McGrath responded by stating " ... He pushed it too far. ... he could have easily avoided this"
(NYSCEF Doc. 70 at Bates No. WW002295-98). At a minimum, this exchange creates a triable
issue of fact as to whether Plaintiffs work from home accommodation, given to him due to his
immunocompromised status as a lymphoma survivor, played a role in being placed on a
performance improvement plan and ultimately terminated.
Viewing the facts in the light most favorable to the plaintiff as the nonmovant, the record
supports a finding that Plaintiff was placed on a PIP at least in part as an effort to do-away with
Plaintiffs work from home accommodation - an accommodation that was supported by a note
from his doctor stating he was required to work from home to protect his fragile immune system
(see Karayiorgou v Trustees of Columbia University, 198 AD3d 598, 599 [1st Dept 2021]
[summary judgment denied due to issues of fact as to whether defendant's non-discriminatory
explanation was pretextual]; Ramos v Metro-North Commuter Railroad, 194 AD3d 433, 434 [1st
Dept 2021 ]). There is likewise evidence that Plaintiffs colleagues also believed he was being
terminated at least in part due to his work from home accommodation (NYSCEF Doc. 81 ). There
is also a long history of positive performance reviews indicating that Plaintiff was able to perform
well despite his accommodation, and so viewing the facts in the light most favorable to the non-
movant, there is an inference that the increased scrutiny of Plaintiffs accommodation, the slack
message that Plaintiff needed to "get his a __ into the office" and the PIP could give rise to an
inference of disability-based discrimination. These are triable issues of fact.
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For the same reasons this Court finds issues of fact prevent granting summary judgment
on Plaintiff's disability discrimination claim, so too does the Court find issues of fact prevent
granting summary judgment dismissing Plaintiff's cooperative dialogue claim. Once an employee
establishes that he or she is or may be entitled to an accommodation, the employe must engage in
dialogue concerning the person's accommodation needs (Hosking v Memorial Sloan-Kettering
Cancer Ctr., 186 AD3d 58 [l st Dept 2020]). Although at one time Plaintiff and Defendant were
engaged in a cooperative dialogue regarding Plaintiff's work from home accommodation, the
Court finds there are issues of fact as to whether the dialogue broke down around the time Plaintiff
was asked to provide multiple doctor's notes and was put on a PIP. The dialogue must take place
in good faith and not a unilateral employer decision cloaked by business judgment. This is
underscored by the Slack messages previously discussed.
Viewing the facts in the light most favorable to the non-movant, these statements raise a
triable issue of fact as to whether Defendant was engaged in a good faith dialogue or whether
Defendant had already decided to put Plaintiff on a PIP and terminate his employment if he did
not abandon his accommodation. (Jacobsen v New York City Health & Ho!>ps. Corp., 22 NY3d
824 [2014) [engaging in an interactive process is just one factor to be considered in determining
cooperative dialogue claim]; see also Lettau v 1199 SEIU National Benefit Fund, 200 AD3d 462
[1st Dept 2021] citing Hosking, supra).
C. Discrimination Based on Caregiver Status
Defendant's motion for summary judgment dismissing Plaintiff's claims for discrimination
based on caregiver status is granted. There are no facts which indicate that plaintiff suffered any
discrimination based on his status as a caregiver (Martinez v City ofNew York, 206 AD3d 532 [1st
Dept 2022]). Plaintiff has made no showing that anyone prevented him from taking parental leave
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or made any inappropriate comments towards him about taking parental leave. Although Plaintiff
claims upon return from parental leave, he was told that people were "uncomfortable" with him
being out of the office, a stray remark such as this is insufficient to give rise to an inference of
discrimination (Tihan v Apollo Management Holdings, L.P., 201 AD3d 557 [1st Dept 2022] [stray
remarks do not support an inference of discrimination under the circumstances] citing Serdans v
New York and Presbyterian Hosp., 112 AD3d 449 [1st Dept 2013]). Plaintiff conceded that when
he decided to take parental leave, WW was supportive of his choice, and it was his own choice not
to take the full amount of parental leave available.
Accordingly, it is hereby,
ORDERED that Defendant's motion for summary judgment is granted solely to the extent
that Plaintiffs claims alleging discrimination based on his status as a caregiver is granted, and
Plaintiff's cause of action for caregiver discrimination is dismissed; and it is further
ORDERED that Defendant's motion is otherwise denied; and it is further
ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
6/28/2024
DATE HONj MARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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