Foster v. United Parcel Service of America, Inc.

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK □□ □□ Teale ENED

DOC #:

MATT FOSTER, DATE FILED: 06/24/2025

Plaintiff,

-against- 18-cv-1706 (NSR)

UNITED PARCEL SERVICE OF OPINION & ORDER

AMERICA, INC., UPS FREIGHT, INC, and

TFORCE FREIGHT, INC.,

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Matt Foster (“Plaintiff”) initiated this action on February 23, 2018, bringing forth

claims for violations of the New York State Human Rights Law (““NYSHRL”) and Title II of the

Americans with Disabilities Act (“ADA”), against Defendants United Parcel Service of America,

Inc. (““UPSA”) and against UPS Freight, Inc. (“UPS Freight”), which became TForce Freight, Inc.

(“TForce Freight”)! (collectively, the “Defendants”).

Presently before the Court is Defendants UPSA’s Motion for Summary Judgment and

TForce Freight’s Motion for Summary Judgment pursuant to Federal Rules of Civil Procedure 56.

For the following reasons, Defendant UPSA’s Motion for Summary Judgment is GRANTED and

Defendant UPS Freight’s Motion for Summary Judgment is GRANTED.

BACKGROUND

Defendants and Plaintiff submitted briefs, Defendants submitted a statement of material

fact pursuant to Local Rule 56.1, to which Plaintiff submitted a response with a supplemental

| “TForce Freight” is referred to as “UPS Freight” for the purposes of this Opinion and Order.

statement of material fact, and the record and exhibits from discovery in the instant proceeding,

which reflect the following factual background. The facts are undisputed unless otherwise stated.

Plaintiff was employed by UPS Freight. (Defendants’ Rule 56.1 Statement of Undisputed

Material Facts (“Defs.’ 56.1”) ¶ 7, ECF No. 194.) UPS Freight was a subsidiary of UPSA until

2021, when TFI International, Inc., acquired UPS Freight from UPSA, with UPS Freight becoming

TForce Freight. (Id. ¶ 2.) Plaintiff suffered a traumatic brain injury at the age of 15 when he fell

off a cliff. (Id. ¶ 6.) Plaintiff was hired as a City Driver by UPS Freight. (Id. ¶ 7.) Upon being hired,

Plaintiff attended a UPS Freight orientation, wherein he received UPS Freight’s employee

handbook. (Id. ¶ 10.) Plaintiff worked under a collective bargaining agreement between UPS

Freight and the Teamsters. (Id. ¶ 9.) UPS Freight was responsible for disciplining Plaintiff for any

violations of UPS Freight’s policies and rules and responsible for making all decisions relating to

employment. (Id. ¶¶ 33, 59.)

In April 2017, Plaintiff, without being asked, submitted medical records detailing that

Plaintiff suffered from forgetfulness, was experiencing a drop in his verbal intellectual scale, was

developing new stuttering issues, and that testing was needed to rule out epileptic activity. (Id. ¶

15.) After receiving such information, and out of concern for Plaintiff’s safety, UPS Freight

removed Plaintiff from his position as City Driver. (Id. ¶ 17.) Plaintiff returned to work on or

around July 3, 2017, after he provided UPS Freight a copy of a letter from his medical provider,

eRiver Neurology, clearing Plaintiff for full employment status without restrictions. (Id. ¶ 18.)

After Plaintiff returned to work, Plaintiff applied for reasonable accommodations. (Id. ¶

19.) Plaintiff had a meeting with UPS Freight supervisors on August 2, 2017, to discuss potential

accommodations. (Id.) At the meeting, the parties completed an accommodation checklist, which

stated that Plaintiff had difficulty remembering, that he would benefit from being assigned

repetitive tasks, that he needed additional time to complete tasks and needed written instructions.

(Id.) The accommodation checklist the parties completed indicated that Plaintiff could not identify

any other jobs that he could perform beyond being a City Driver. (RCM Dec., Exs. 8 and 9.) UPS

Freight advised Plaintiff that it would conduct a six-month job search to identify a position that

would accommodate Plaintiff’s disabilities. (Defs.’ 56.1 ¶ 20.)

While conducting this search, UPS Freight removed Plaintiff from work on November 10,

2017, due to Plaintiff’s failure to follow direct instructions from his direct manager, pending

completion of the six-month job search for a position that could reasonably accommodate Plaintiff.

(Id. ¶ 21.) Thereafter, in January 2018, UPS Freight reached out to Plaintiff to discuss Plaintiff

returning to work as a Road Driver. (Id. ¶ 24.) Plaintiff preferred to work as a City Driver but

accepted his transfer to work as a Road Driver. (Id. ¶¶ 24-27.) In the Road Driver position Plaintiff

continued to enjoy the same benefits and was even compensated at a higher rate. (Id. ¶ 27.)

Similarly, Plaintiff continued to receive the same degree of seniority for the purposes of wage rates,

benefits, layoff, recall rights and vacation benefits. (Id.)

Plaintiff was again terminated in November 2021 after crashing into a barrier, failing to

report the crash to management, driving at least 20 additional miles while having a severely

damaged wheel, and then improperly reporting the crash to an hourly employee instead of his

manager. (Id. ¶¶ 54-57, 59.) Plaintiff filed a grievance related to his termination, after which a

grievance panel heard the case in December 2021 and mitigated the discipline to a time served

suspension and ordered that Plaintiff return to work without backpay. (Id. ¶ 60.) UPS Freight again

issued disciplinary notices against Plaintiff in December 2021 for not following his mandated route

and in January 2022, after Plaintiff was inspected by the Connecticut Department of Motor

Vehicles and found to have numerous infractions, including violations for driving with an expired

inspection sticker, failing to maintain blank logbooks required by Department of Transportation

regulations and failure to certify his electronic logging device. (Id. ¶¶ 64-65.)

Based on the foregoing, Plaintiff brings claims alleging violations of the NYSHRL and the

ADA against the Defendants.

PROCEDURAL HISTORY

On February 23, 2018, Plaintiff commenced this action against the Defendants in his

Complaint. (ECF No. 1.) Plaintiff subsequently filed a First Amended Complaint (ECF No. 25),

and a Second Amended Complaint (ECF No. 113) (“SAC”), the latter being the operative

complaint. On February 28, 2025, Defendant UPSA filed its motion for summary judgment and its

memorandum of law in support (ECF No. 190) (“190 Mot.”), and Defendant UPS Freight filed its

motion for summary judgment and its memorandum of law in support. (ECF No. 192) (“192

Mot.”) Plaintiff filed his opposition to the Defendants’ motions for summary judgments (ECF Nos.

196 and 198) (“196 Opp.” and “198 Opp.”), and Defendants filed their respective replies in further

support of their motions for summary judgment. (ECF Nos. 199 and 200) (“199 Reply” and “200

Reply”). The Defendants submitted a joint Rule 56.1 Statement (ECF No. 194) (“Defs.’ 56.1”),

and Plaintiff submitted a counter Rule 56.1 Statement. (ECF No. 197) (“Pltf.’s 56.1”).

LEGAL STANDARD

A. Rule 56

Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”) provides in relevant part, that

a case is properly dismissed for lack of subject matter jurisdiction when the district court lacks the

statutory or constitutional power to adjudicate it. When resolving a Rule 12(b)(1) motion for lack

of lack of subject matter jurisdiction, the court may refer to evidence outside the pleadings. See

Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). Plaintiff bears the burden

of demonstrating by a preponderance of the evidence that subject matter jurisdiction exists. See

Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996).

Pursuant to Rule 56 of the Federal Rules of Civil

Procedure, summary judgment is appropriate “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). The moving party bears the initial burden of pointing to evidence in the record, including

depositions, documents, affidavits, or declarations “which it believes demonstrate[s] the absence

of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

moving party may support an assertion that there is no genuine dispute of a particular fact by

“showing ... that [the] adverse party cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to the

nonmoving party to raise the existence of a genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986). To oppose summary judgment, “[s]tatements that are

devoid of any specifics, but replete with conclusions” will not suffice. Bickerstaff v. Vassar Coll.,

196 F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986) (holding the nonmoving party “must do more than simply show that there is

some metaphysical doubt as to the material facts”); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292

(2d Cir. 2010) (holding the nonmoving party “may not rely on conclusory allegations or

unsubstantiated speculation” (internal quotations and citations omitted)).

A genuine dispute of material fact exists when “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Gen. Star Nat'l

Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of Waterbury,

542 F.3d 31, 35 (2d Cir. 2008); Benn v. Kissane, 510 F. App'x 34, 36 (2d Cir. 2013). Courts must

“draw all rational inferences in the non-movant's favor” when reviewing the record. Kirkland v.

Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing Anderson, 477 U.S. at 248). Importantly,

“the judge's function is not [ ] to weigh the evidence and determine the truth of the matter” or

determine a witness's credibility. Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is

the threshold inquiry of determining whether there is the need for a trial.” Id. at 250. A court should

grant summary judgment when a party “fails to make a showing sufficient to establish the

existence of an element essential to that party's case.” Celotex, 477 U.S. at 322.

Finally, where the nonmoving party has failed to make a sufficient showing on an essential

element of his case with respect to which he has the burden of proof at trial, then summary

judgment is appropriate. Barlow v. Connecticut, 319 F. Supp. 2d 250, 259 (D. Conn. 2004), aff'd

sub nom. Barlow v. Dep't of Pub. Health, Connecticut, 148 F. App'x 31 (2d Cir. 2005).

DISCUSSION

Plaintiff brings forth claims for violations of the NYSHRL and the ADA. The Court

addresses them in turn, grouping the claims by the respective Defendant for clarity’s sake.

A. NYSHRL and ADA Claims Against UPSA (Count 5 through Count 16)

In order to prosecute an ADA claim against UPSA, the Plaintiff must first establish “[t]he

existence of an employer-employee relationship” as this is a “primary element” of such claims.

Harris v. NYU Langone Med. Ctr., No. 12 CIV. 0454 (RA) (JLC), 2013 WL 3487032 (S.D.N.Y.

July 9, 2013), report and recommendation adopted as modified, No. 12 CIV. 0454 (RA), 2013 WL

5425336 (S.D.N.Y. Sept. 27, 2013); see also Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 370

(2d Cir. 2006). Likewise, “[a]n employer-employee relationship is also required to sustain

analogous claims under the NYSHRL.” NYU Langone Med. Ctr., 2013 WL 3487032 at *11. Where

no employer-employee relationship exists, the court must dismiss the complaint. McCray v. City

Univ. of N.Y., 2011 WL 1197467, at *4–5 (S.D.N.Y. Mar. 25, 2011).

Presently, the Court must grant summary judgment in favor of UPSA as to Count 5 through

Count 16, as there is no genuine dispute of material fact as to whether UPSA is an employer of

Plaintiff, more specifically that UPSA does not have an employer-employee relationship with

Plaintiff. UPSA’s connection to the instant action stems from its relationship with UPS Freight;

UPSA was the parent company of UPS Ground Freight (“UPS Freight”) until 2021. (Defs.’ 56.1 ¶

1.) UPS Freight was a wholly owned subsidiary of UPSA until 2021. (Id. ¶ 2.)

To hold UPSA as the employer of UPS Freight’s employees would require “extraordinary

circumstances.” Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996). The relevant analysis to

determine whether a parent company may be held liable as an employer pursuant to the single

employment doctrine was articulated by the Second Circuit in Cook v. Arrowsmith Shelburne, Inc.

Therein, the Second Circuit held the analysis consists of a four-factor inquiry, namely whether

there was “(1) interrelation of operations, (2) centralized control of labor relations, (3) common

management, and (4) common ownership or financial control.” Cook v. Arrowsmith Shelburne,

Inc., 69 F.3d 1235, 1240 (2d Cir. 1995). Notably, “[i]n the employment discrimination context . . .

‘[t]here is a strong presumption that a parent is not the employer of its subsidiary’s employees.’”

Juhua Han v. Kuni's Corp., No. 19-CV-6265 (RA), 2020 WL 2614726, *7 (S.D.N.Y. May 22,

2020) (quoting Fenner v. News Corp., No. 09 Civ. 09832 (LGS), 2013 WL 6244156, at *9

(S.D.N.Y. Dec. 2, 2013)). The most significant factor is the second factor: centralized control of

labor relations. Cook, 69 F.3d 1235 at 1240. Courts have applied this four-prong analysis to

ascertain whether a defendant is an employer for the purposes of a discrimination claim brought

under the NYSHRL and the ADA alike. Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 154 (2d

Cir. 2014).

Per the Cook analysis, in light of the record established in the instant action, the Court

cannot find that UPSA can be held liable pursuant to the single employer doctrine for the alleged

conduct of UPS Freight employees. The weight of the Cook factors favors finding UPSA and UPS

Freight to not be a single employer. USPA asserts that UPS Freight “directly employed its

employees, including management and HR employees” and that “[e]mployees, including Plaintiff,

received paychecks from UPS Freight.” (Defs.’ 56.1 ¶ 3.) Additionally, Plaintiff worked under a

collective bargaining agreement between UPS Freight and the Teamsters. (Id. ¶ 9.) At hiring,

Plaintiff received UPS Freight’s employee handbook, and subsequently went through orientation

with UPS Freight after he was hired. (Id. ¶ 10.) UPS Freight was responsible for disciplining the

Plaintiff for violations of UPS Freight’s policies and rules. (SAC ¶ 114.) Importantly, it was UPS

Freight that made the decision to terminate Plaintiff from his position. (Defs.’ 56.1. ¶¶ 33, 59.) In

support of these factual averments, UPSA offers substantial evidence from the record, namely the

deposition of Plaintiff (RCM Dec., Ex. 2), payroll checks (RCM Dec., Ex. 3), and Plaintiff’s

November 9, 2021, termination notice (RCM Dec., Ex. 31).

Such evidence clearly demonstrates that the operations of UPSA and UPS Freight were not

interrelated (first prong) and, that contrary to a centralized control of labor relations, UPS Freight

handled labor relations on an individual basis separate from UPSA (second prong). As to the third

prong and the fourth prong, neither the record nor the Defendants’ statement of undisputed material

facts and Plaintiff’s counterstatement of undisputed material facts are clear as to whether there was

common management and common ownership between UPSA and UPS Freight. Even so, the Cook

analysis still favors not finding that UPSA and UPS Freight to be a single employer, as caselaw is

clear that “the third and fourth factors – common management and common ownership – are, in

particular, ordinary aspects of the parent-subsidiary relationship, which often may be of limited

use in determining whether to treat two or more corporate affiliates as a single employer.”

See Turley, 774 F.3d at 156 n.4 (internal quotation marks and citation omitted). Moreover, the

Court has already concluded that the evidence in the record indicates a lack of centralized control

of labor relations, which the Second Circuit has held to be the “most significant” factor in deciding

whether two corporate entities constitute a single employer. Cook, 69 F.3d at 1240-41. And, as

discussed supra, there is a strong presumption that a parent corporate entity is not the employer of

its subsidiary’s employees. Fenner v. News Corp., No. 09 Civ. 09832 (LGS), 2013 WL 6244156,

at *9 – 12 (S.D.N.Y. Dec. 2, 2013) (noting that “[t]he presumption is that ‘corporate personalities

remain distinct’”).

By offering such evidence in support of its motion for summary judgment, UPSA satisfies

its burden of proof to show that USPA is not an employer alongside UPS Freight such that Plaintiff

is now required to furnish evidence to raise “the existence of ‘specific facts showing that there is

a genuine issue for trial.’” Transflo Terminal Servs., Inc. v. Brooklyn Res. Recovery, Inc., 248 F.

Supp. 3d 397, 399 (E.D.N.Y. 2017). Plaintiff, in response, states that “Human Resources for all of

UPS’s companies were centralized and oversaw all UPS America subsidiaries.” (Pltf.’s 56.1 ¶ 3.)

Plaintiff further contends that the “interrelatedness was confusing” between UPSA and UPS

Freight. (Id. ¶ 4.) Such responses are not sufficient to defeat UPSA’s evidence that UPSA was not

an employer of the Plaintiff, as they function only as a “[c]onclusory statement[], devoid of

specifics, [which are] insufficient to defeat a properly supported motion for summary judgment.”

Transflo Terminal Servs., Inc, 248 F. Supp. 3d 397 at 399. As a result, the Court concludes that

pursuant to the Cook analysis, UPSA and UPS Freight do not constitute a single employer and, by

extension, UPSA cannot be held liable for any purported discriminatory actions taken by UPS

Freight employees that could constitute violations of the NYSHRL and ADA.

Because the Plaintiff has not adduced any evidence to rebut USPA’s proof that USPA was

not an employer of the Plaintiff, the Court must find there is no dispute of material fact as to

whether USPA was an employer of the Plaintiff, and, therefore, there is no genuine dispute of

material fact as to whether UPSA can be liable for any purported violations of the NYSHRL and

ADA committed by UPS Freight employees. Thus, summary judgment is warranted and is granted

in favor of UPSA as to Count 5 through Count 16.

B. 2017 NYSHRL Claims against UPS Freight (Count 1 through Count 4)

Plaintiff asserts four claims under the NYSHRL against UPS Freight stemming from

purportedly discriminatory and retaliatory conduct taken by UPS Freight against Plaintiff in 2017,

specifically UPS Freight removing Plaintiff from service in April 2017, and how UPS Freight

handled Plaintiff’s request for a reasonable accommodation in July 2017.

In order to state a claim for discrimination under the NYSHRL, a plaintiff must “show that

(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered

an adverse employment action; and (4) the adverse action took place under circumstances giving

rise to the inference of discrimination.” Salazar v. Ferrara Bros. Bldg. Materials Corp., No. 13-

CV-3038 (JG) (VMS), 2015 WL 1535698, at *5 (E.D.N.Y. Apr. 6, 2015). To state a claim for

retaliation under the NYSHRL, a plaintiff must demonstrate that he “(1) was engaged in a protected

activity, (2) that defendants knew of the protected activity, (3) that defendants took adverse

employment actions against plaintiff, and (4) a causal connection between the protected activity

and the adverse action.” LaSalle v. City of New York, No. 13 CIV. 5109 (PAC), 2015 WL 1442376,

at *6 (S.D.N.Y. Mar. 30, 2015).

a. Plaintiff’s removal from service in April 2017 (Count 1 and Count 2)

Plaintiff avers that UPS Freight discriminated and retaliated against him in violation of

NYSHRL when, in April 2017, UPS Freight removed Plaintiff from service, specifically removing

him from the operation of tractor trailers as a City Driver. (SAC ¶¶ 58-60.) Plaintiffs NYSHRL

discrimination stemming from Plaintiff’s removal fails as a matter of law as the record clearly

establishes that UPS Freight had a legitimate, nondiscriminatory reason for the adverse action

Plaintiff experienced, which Plaintiff is unable to rebut.

It is undisputed that Plaintiff, of his own accord, submitted medical documentation from

Hudson River Neuropsychology detailing that Plaintiff suffered from forgetfulness, noting a

significant drop in Plaintiff’s verbal intellectual scale, indicating Plaintiff developed new stuttering

issues, and recommending that Plaintiff receive “a neurological workup . . . including a seizure

workup since there seem[ed] to be an indication in the medical record of paroxysmal episodes of

disorientation.” (Defs.’ 56.1 ¶ 15.) Moreover, the report stated that “[u]ncontrolled seizure activity

could lead to progressive deterioration of cognitive skills” and recommended testing to rule out

“epileptiform” activity. (Id.) In other words, Plaintiff’s own medical care team was clearly

indicating that they were concerned he was suffering from seizure activity and that he was possibly

on the verge of having an epileptic episode. (Id.)

In response to Plaintiff providing this information, Plaintiff did experience an adverse

employment action, namely that UPS Freight temporarily removed him from service. (Id. ¶ 17.)

However, Plaintiff’s NYSHRL must fail as a matter of law because the record clearly establishes

that UPS Freight took the adverse employment action for legitimate, nondiscriminatory reasons.

Specifically, UPS Freight temporarily removed Plaintiff from his role as an operator of tractor

trailers due to concerns about whether his medical conditions rendered him unable to safely operate

such vehicles. An employer’s concerns about whether an employee can safely perform their job is

sufficient to show a legitimate, non-discriminatory reason for adverse action taken under the

NYSHRL. Lee v. City of Syracuse, 603 F. Supp. 2d 417, 440 (N.D.N.Y. 2009).

Because UPS Freight has sufficiently offered a legitimate, nondiscriminatory reason,

Plaintiff bears the burden to demonstrate that UPS Freight’s reasons were false and that it was

Plaintiff’s disability that truly motivated UPS Freight to undertake the adverse action. Clark v.

Jewish Childcare Ass’n, Inc., 96 F. Supp. 3d 237, 249 (S.D.N.Y. 2015). Presently, Plaintiff has

failed to adduce any evidence that would demonstrate UPS Freight’s April 2017 removal was

motivated by discriminatory animus, except conclusory statements which are “insufficient to

defeat a properly supported motion for summary judgment.” Transflo Terminal Servs., Inc, 248 F.

Supp. 3d 397 at 399. Accordingly, the Court must find that as a matter of law Plaintiff’s NYSHRL

discrimination claim predicated on Plaintiff’s April 2017 removal fails, and thus grants summary

judgment in favor of UPS Freight as to Count 1.

Regarding Plaintiff’s NYSHRL retaliation claim predicated on Plaintiff’s April 2017

removal, the Court likewise finds that such a claim fails as a matter of law. Here, Plaintiff has not

proffered any evidence that he engaged in protected activity. Protected activity is defined as “action

taken to protest or oppose statutorily prohibited discrimination.” Farmer v. Shake Shack Enters.,

LLC, 473 F. Supp. 3d 309 (S.D.N.Y. 2020) (quoting Wright v. Monroe Cmty. Hosp., 493 F. App'x

233, 236 (2d Cir. 2012)). Here, it is undisputed that, without being asked to, Plaintiff provided

medical records. (Defs.’ 56.1 ¶ 15.) However, this does not constitute protected activity as Plaintiff

was not “protest[ing] or oppos[ing] statutorily prohibited discrimination” and was only providing

such records to get UPS Freight to “ease up” on him. (Id. ¶ 14); (Pltf.’s 56.1 ¶ 14.) Because Plaintiff

did not engage in protected activity as it relates to his April 2017 removal, the Court must find that

Plaintiff’s NYSHRL retaliation claim fails as a matter of law, and thus grants summary judgment

in favor of UPS Freight as to Count 2.

b. Plaintiff’s request for a reasonable accommodation in July 2017 (Count 3 and

Count 4)

Plaintiff’s NYSHRL discrimination and retaliation claims brought forth under Count 3 and

Count 4 stem from Plaintiff’s request for an accommodation in July 2017 after his return-to-work

following UPS Freight’s removal of Plaintiff from service in April 2017. In order to state a claim

for failure to accommodate under the NYSHRL, a plaintiff must show that “‘(1) he is a person

with a disability under the meaning of [the relevant statute]; (2) an employer covered by the statute

had notice of his disability; (3) with reasonable accommodation the employee could perform the

essential functions of the job at issue; and (4) the employer refused to make such

accommodations.’” Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir.

2015) (quoting McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)). Where

an employer “has already taken (or offered) measures to accommodate the [plaintiff’s] disability,

the employer is entitled to summary judgment if, on the undisputed record, the existing

accommodation is ‘plainly reasonable.’ In other words, the plain reasonableness of the existing

accommodation ends the analysis.” Noll v. Int'l Bus. Machines Corp., 787 F.3d 89, 94 (2d Cir.

2015). An accommodation’s reasonableness turns on whether the accommodation “enable[s] an

individual with a disability who is qualified to perform the essential functions of that position . . .

or to enjoy equal benefits and privileges of employment.” Id. (quoting 29 C.F.R. § 1630.2(o)(1)(ii),

(iii)).

Here, the record plainly establishes that UPS Freight reasonably accommodated Plaintiff,

meaning that Plaintiff’s NYSHRL failure to accommodate claim fails as a matter of law. Plaintiff

first applied for accommodations. (Pltf.’s 56.1 ¶ 18.) Plaintiff met with UPS Freight supervisors

on August 2, 2017, to go over an accommodation checklist. (Id.) The accommodation checklist

stated that Plaintiff had difficulty remembering, that he would like to do repetitive tasks, that he

required extra time to complete tasks and needed written instructions. (Id.) The ADA checklist

indicated that Plaintiff did not identify any other jobs he could perform outside of the City Driver

position. (RCM Dec., Exs. 8 and 9.) On August 9, 2017, UPS Freight advised Plaintiff that, beyond

providing written instructions, it had not yet identified any accommodations that met Plaintiff’s

needs and stated that it would continue to look for potential reasonable accommodations. (Defs.’

56.1 ¶ 21.) Specifically, UPS Freight stated that it would conduct a six-month job search to discern

a position in line with Plaintiff’s accommodation request. (Id. ¶ 20.)

Thereafter, in January 2018, UPS Freight wrote to Plaintiff to discuss, as a reasonable

accommodation, his transferring to work as a Road Driver, rather than a City Driver, which

Plaintiff accepted. (Id. ¶ 24.) Plaintiff preferred to remain working as a City Driver. (Id. ¶ 27.)

However, in the Road Driver position, Plaintiff continued to enjoy the same benefits he received

as a City Driver and, in fact, was compensated at an even higher rate. (Id.) Likewise, Plaintiff

continued to enjoy the same degree of seniority for the purposes of wage rates, benefits, layoff,

recall rights and vacation benefits. (Id.)

Such undisputed facts clearly prove that UPS Freight took steps to reasonably

accommodate Plaintiff’s disability. The accommodation itself was reasonable as it allowed

Plaintiff to enjoy “equal benefits and privileges of employment.” Int'l Bus. Machines Corp., 787

F.3d 89 at 94. While Plaintiff may have preferred an alternative accommodation, it is well

established that an employer need not offer the employee’s chosen accommodation to satisfy its

obligations under the NYSHRL. See Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002) (noting

that “to avoid [liability], the employer need not offer the accommodation the employee prefers.

Instead, when any reasonable accommodation is offered, the statutory inquiry ends”); see also

Nieblas-Love v. New York City Hous. Auth., 165 F. Supp. 3d 51 (S.D.N.Y. 2016). Thus, because

the record clearly establishes that UPS Freight reasonably accommodated Plaintiff, the Court must

find that Plaintiff’s NYSHRL discrimination claim fails as a matter of law and grants summary

judgment in favor of UPS Freight as to Count 3.

Under Count 4, Plaintiff appears to fashion another NYSHRL retaliation claim, asserting

that UPS Freight retaliated against him for requesting a reasonable accommodation in July 2017

by way of removing him from work in November 2017. (SAC ¶ 134.) This claim similarly falls

short, as Plaintiff does not offer any evidence to demonstrate that he suffered an adverse action as

a consequence of engaging in protected activity under the NYSHRL. (Pltf.’s 56.1 ¶ 18). While

Plaintiff was removed from work following his request for a reasonable accommodation, the record

clearly proves that Plaintiff was removed for cause – for failure to, among other infractions, follow

direct instructions from his direct manager. (Id. ¶ 21.) Therefore, because the undisputed facts

indicate that Plaintiff was removed from his position for failing to adhere to UPS Freight policies

and regulations, and, if anything, also point to UPS Freight’s thorough efforts to accommodate

Plaintiff’s disability, Plaintiff’s NYSHRL retaliation claim under Count 4 fails as a matter of law,

and summary judgment is granted in favor of UPS Freight as to Count 4.

C. 2021 NYSHRL and ADA Claims against UPS Freight (Count 17 through Count 20)

Plaintiff asserts four claims (two NYSHRL claims and two ADA claims) against UPS

Freight stemming from purportedly discriminatory and retaliatory conduct taken by UPS Freight

against Plaintiff in 2021 and in 2022. There are three relevant incidents: UPS Freight’s termination

of Plaintiff in November 2021, and disciplinary notices Plaintiff received from UPS Freight in

December 2021 and January 2022.

The requirements to state a NYSHRL claim for discrimination and a NYSHRL claim for

retaliation have been discussed supra. To state a claim for discrimination under the ADA, a plaintiff

must show “(1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as

suffering from a disability within the meaning of the ADA; (3) plaintiff was qualified to perform

the essential functions of the job, with or without reasonable accommodations; and (4) plaintiff

suffered an adverse employment action because of [her] disability or perceived disability.”

Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005). To effectuate a claim for retaliation

under the ADA, a plaintiff must show that “[]he engaged in protected participation or opposition

under [the ADA], [2] that the employer was aware of this activity, [3] that the employer took

adverse action against the plaintiff, and [4] that a causal connection exists between the protected

activity and the adverse action.” Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223

(2d Cir. 2001).

Plaintiff’s claims for discrimination under the NYSHRL and ADA fail for the same reason

– any purported adverse action Plaintiff experienced was not by reason of his disability. Regarding

Plaintiff’s November 2021 termination, the record clearly establishes that such termination was

for cause – was due to the fact that Plaintiff crashed into a barrier, did not report the crash to

management, drove for at least 20 more miles with a wheel that was severely damaged, and then

improperly reported the crash to an hourly employee instead of his manager. (Defs.’ 56.1 ¶¶ 54-

57); (Pltf.’s 56.1 ¶¶ 54-57.) Plaintiff even admits that he was terminated for failure to report the

accident. (Pltf.’s 56.1 ¶ 59.) Thus, Plaintiff’s November 2021 termination cannot serve as the basis

for viable discrimination claims under the NYSHRL and the ADA.

The disciplinary notices Plaintiff received in December 2021 and January 2022 are

similarly unable to sustain discrimination claims under the NYSHRL and ADA. Plaintiff received

a disciplinary notice in December 2021 after Plaintiff did not follow the mandated route for his

driving and for failing to make a stop along his route. (Pltf.’s 56.1 ¶¶ 61-62.) Then, in January

2022, Plaintiff received a disciplinary notice after the Connecticut Department of Motor Vehicles

Commercial Vehicle Safety Division inspected Plaintiff’s vehicle in Tolland, Connecticut, and

found that Plaintiff was driving with an expired inspection sticker, that Plaintiff failed to maintain

blank logbooks required by Department of Transportation regulations, and that Plaintiff failed to

certify his electronic logging device. (Pltf.’s 56.1 ¶¶ 64-65.) Plaintiff does not dispute being

responsible for the conduct that he was charged with committing under the December 2021 and

January 2022 disciplinary reports. (Id. ¶¶ 66-67.) Therefore, the record plainly establishes as

undisputed fact that Plaintiff received said disciplinary notices for cause and not due to Plaintiff’s

disability; as a result, the December 2021 and January 2022 disciplinary notices cannot sustain

Plaintiff’s NYSHRL and ADA discrimination claims. Accordingly, the Court must find that

Plaintiff’s NYSHRL and ADA discrimination claims predicated on the November 2021

termination, and the December 2021 and January 2022 disciplinary notices fail as a matter of law

and grants summary judgment in favor of UPS Freight as to Count 17 and Count 19.

By extension, because the Court concludes that Plaintiff’s November 2021 termination and

December 2021 and January 2022 disciplinary notices were motivated solely by legitimate, non-

discriminatory reasons, such adverse actions cannot be characterized as retaliatory as needed for

Plaintiff to state retaliation claims under the NYSHRL and the ADA. The record only shows that

the action taken by USP Freight in November 2021, December 2021 and January 2022 reflect

“[nothing] other than [UPS Freight’s] enforcement of its preexisting disciplinary policies in a

reasonable manner.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 26 (2d Cir.

2014). Thus, Plaintiff’s retaliation claims under the NYSHRL and the ADA fail as a matter of law,

and the Court must grant summary judgment in favor of the UPS Freight as to Counts 18 and 20.

CONCLUSION

For the foregoing reasons, Defendants United Parcel Service of America, Inc’s motion for

summary judgment and UPS Freight, Inc.’s motion for summary judgment are GRANTED.

The Clerk of Court is kindly directed to terminate the motions at ECF Nos. 190 and 192,

to enter judgment in favor of Defendants United Parcel Service of America, Inc., UPS Freight, Inc.

and TForce Freight, Inc. and against Plaintiff, and to terminate the instant action.

Dated: June 24, 2025 SO ORDERED:

White Plains, New York

________________________________

NELSON S. ROMÁN

United States District Judge