| Romanello v Intesa Sanpaolo S.p.A. |
| 2012 NY Slip Op 05595 [97 AD3d 449] |
| July 17, 2012 |
| Appellate Division, First Department |
| Guiseppe Romanello, Appellant-Respondent, v IntesaSanpaolo S.p.A., Respondent-Appellant, and Ann Stefan,Respondent. |
—[*1] Gilmartin, Poster & Shafto LLP, New York (Michael C. Lambert of counsel), forrespondent-appellant and respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered May 24, 2010, ascorrected October 20, 2010, which granted defendants' motion to dismiss the first through fifthand eighth and ninth causes of action, and denied the motion as to the seventh cause of action,modified, on the law, to grant the motion as to the seventh cause of action, and otherwiseaffirmed, with costs to defendants. Judgment, same court and Justice, entered June 8, 2010,severing and dismissing the complaint as against defendant Ann Stefan, affirmed, with costs todefendant.
The complaint alleges that plaintiff Giuseppe Romanello, an executive employed at the NewYork branch of defendant Intesa Sanpaolo S.p.A. (Intesa), became disabled on or about January 9and 10, 2008, due to the onset of illness causing visual disturbances, inability to concentrate orread, and faintness. As a result of his alleged disability, plaintiff did not return to his office afterJanuary 10, 2008, with the exception of an unsuccessful attempt to resume work on January 22,2008. Plaintiff alleges that he has been diagnosed as suffering from major depression, syncopeand collapse, neurasthenia, and anxiety.
After plaintiff had been absent from work for more than four months, Intesa sent his counsela letter, dated May 29, 2008, stating, among other things: "[Plaintiff's leave pursuant to theFamily and Medical Leave Act] expires on June 3, 2008 and [Intesa] would appreciate knowingwhether he intends to return to work or to abandon his position." In response, by letter dated June2, 2008, plaintiff's counsel asserted, inter alia, that: (1) plaintiff "remains unable to return to workin any capacity because of his disabling conditions"; (2) plaintiff's "severe and disabling illnesses. . . have prevented him, and continue to prevent him, from working in any capacity,let alone in the capacity in which he had been serving"; (3) plaintiff had "an uncertain prognosisand a return to work date that is indeterminate at this time"; (4) "if there is to be any [*2]severance of the employment relationship between [plaintiff] and[Intesa], it will be of [Intesa's] volition only and not an 'abandonment of position' by [plaintiff]";and (5) Intesa "will bear any related consequences and liabilities for its termination of[plaintiff's] employment in such circumstances" (emphasis added). Immediately thereafter,however, the letter made another demand suggesting that plaintiff's true concern was not keepinghis job but continuing to receive his salary until the next month: "Whether or not [Intesa] choosesto sever its employment relationship with [plaintiff] at this time, [plaintiff] remains entitled tocontinued payments pursuant to [Intesa's] salary continuation policy for a period of six monthsafter his disability began." Thereafter, Intesa terminated plaintiff's employment as of June 4,2008.
Plaintiff commenced this action against Intesa and its director of human resources in 2009,asserting nine causes of action. In lieu of answering, defendants moved, pursuant to CPLR 3211(a) (1) and (7), to dismiss all causes of action except the sixth (for breach of contract). The courtgranted the motion to the extent of dismissing the first through fifth, eighth and ninth causes ofaction. Plaintiff appeals the dismissal of these claims, while Intesa cross-appeals the denial of itsmotion with respect to the seventh cause of action. We modify to dismiss the seventh cause ofaction and affirm the dismissal of the remaining causes of action at issue.
The first and second causes of action allege that Intesa, in terminating plaintiff's employment,discriminated against him on the basis of disability in violation of the New York State HumanRights Law (Executive Law § 296 [1] [a]) (the State HRL) and the New York City HumanRights Law (Administrative Code of City of NY § 8-107 [1] [a]) (the City HRL),respectively. The State HRL prohibits discharging an employee because of a disability, with theterm "disability" defined as "limited to disabilities which, upon the provision of reasonableaccommodations, do not prevent the complainant from performing in a reasonable manner theactivities involved in the job or occupation sought or held" (Executive Law § 292 [21]).The City HRL similarly prohibits discharging an employee because of a disability, with theemployer afforded an affirmative defense if the complainant "could not, with reasonableaccommodation, satisfy the essential requisites of the job" (Administrative Code of City of NY§ 8-107 [15] [b]).
In general, under both the State HRL and the City HRL, an employer is obligated to engage adisabled employee in a "good faith interactive process" to identify a reasonable accommodationthat will permit the employee to continue in the position (see e.g. Phillips v City of New York, 66 AD3d 170, 176 [2009]). Inthis case, the undisputed documentary evidence establishes that Intesa attempted to initiate agood faith interactive process by way of its letter of May 29, which asked plaintiff "whether heintend[ed] to return to work," a question that, by necessary implication, also sought the timeframe within which plaintiff expected to be able to resume working, if that was his intention. Inlight of the undisputed documentary evidence establishing that Intesa made a good faith attemptto open an interactive process with plaintiff for the purpose of reaching a mutually acceptableaccommodation, the dissent's suggestion that Intesa did not fulfill its duty to engage in such aprocess is simply inaccurate. On the contrary, the allegations of the complaint and the undisputeddocumentary evidence establish, as a matter of law, that it was plaintiff who abruptly cut off theinteractive process that Intesa tried to initiate.
In a tone that can only be characterized as hostile, plaintiff's counsel's June 2 letter to Intesawent well beyond merely stating that plaintiff was then disabled for work in any capacity and thathe would not be able to resume working for an "indeterminate" period of time. The lettersuggested no time frame within which plaintiff's prognosis could be expected to be better [*3]understood and a possible date for returning to work could beusefully discussed, nor did it invite Intesa to offer other options; to the contrary, the letterthreatened litigation if its demands were not met. The letter essentially shut the door to anyfurther discussion, instead delivering a demand that Intesa grant plaintiff an indefinite leave ofabsence or else be prepared to face a lawsuit. In other words, the letter from plaintiff's counselconfronted Intesa with an inflexible, categorical demand, with no room for negotiation and nosuggestion of a time frame within which plaintiff would be open to revisiting the issue. Byspurning in advance, and through counsel, any good faith attempt by Intesa to engage in abilateral, interactive process to find a way to reconcile both parties' needs, plaintiff dischargedIntesa, as a matter of law, of the obligation to continue its efforts to initiate such a process.
The dissent appears to labor under the misconception that the basis for our affirmance of thedismissal of plaintiff's discrimination claims is that "the employee did not come forward with aspecific request for an accommodation at the inception of the process." On the contrary, the basison which we affirm the dismissal of these claims is the unequivocal demand for indefinite leave,coupled with the threat of litigation, with which plaintiff's counsel responded to Intesa's attemptto initiate a dialogue. Plaintiff's hostile and imperious response to Intesa's question foreclosedany possibility of negotiation and was unaccompanied by any suggestion of a future time atwhich the situation could be reassessed. Significantly, the demand for indefinite leave was madethrough counsel, indicating that there was no reason to expect a more cooperative disposition toemerge from plaintiff if Intesa made further efforts to pursue a dialogue. Hence, even assumingthat an indefinite leave of absence might constitute a reasonable accommodation in a proper case,here, plaintiff's counsel's demand that Intesa either grant indefinite leave or face litigationexcused Intesa from further efforts to seek agreement with plaintiff on a reasonableaccommodation. The dissent, on the other hand, appears to believe that, notwithstandingplaintiff's counsel's unequivocal pronouncements, Intesa was obligated to importune plaintiff toengage in further discussion. We do not believe that, under these circumstances, the employer'sduty extended so far.[FN1]
The dissent does not dispute that an employee does not invite an "interactive process" bythreatening to sue the employer if it fails to grant his initial, maximal demand. The dissentcontends, however, that the June 2 letter of plaintiff's counsel "never" threatened litigation, and,for good measure, accuses us of basing our conclusion "upon a distorted interpretation of thefacts." The dissent can maintain this position only by selectively quoting the June 2 letter andresolutely ignoring its key statement: "[Intesa] will bear any related consequences and liabilitiesfor its termination of [plaintiff's] employment in such circumstances." Strikingly, nowhere doesthe dissent quote or refer to this language, which, even when viewed in the light most favorableto plaintiff, cannot reasonably be interpreted as anything other than a threat to sue in the event[*4]Intesa terminated plaintiff at any time before he eitherreturned to work or announced that he was relinquishing the position. Such frankly hostilelanguage in a letter from counsel is not reasonably susceptible to interpretation as an invitation toengage in a dialogue aimed at finding an accommodation acceptable to both parties—apoint the dissent apparently concedes by pretending that the language does not exist.Accordingly, the motion court correctly dismissed the first and second causes of action as legallyinsufficient.[FN2]
It is ironic that the dissent accuses the majority of "ignoring the context of plaintiff'scounsel's statements" when it is the dissent that ignores the language of the June 2 letter that isinconvenient to its position. Meanwhile, the majority takes account of all pertinent contents ofthe letter, including the language on which the dissent focuses to the exclusion of the threat thatimmediately follows. Whether it is the majority or the dissent that gives an accurate account ofplaintiff's counsel's June 2 letter may be judged from reading in their entirety the three relevantparagraphs of the letter, which are set forth in the margin.[FN3][*5]
The motion court also correctly dismissed the third andfourth causes of action, which allege that Intesa retaliated against plaintiff in violation of theState HRL (Executive Law § 296 [7]) and the City HRL (Administrative Code of City ofNY § 8-107 [7]), respectively. Each of these provisions, in pertinent part, makes itunlawful for an employer to retaliate against an employee for having "opposed" a discriminatorypractice. While the insufficiency of the underlying discrimination claims does not necessarilymandate dismissal of the retaliation claims (see Modiano v Elliman, 262 AD2d 223[1999]), plaintiff does not allege that Intesa terminated his employment because he somehow"opposed" a discriminatory practice (seeMcKenzie v Meridian Capital Group, LLC, 35 AD3d 676, 677-678 [2006]). Rather, hewas terminated because he was unable to do his job for an indefinite period of time. Whether ornot this termination constituted unlawful discrimination on the basis of disability, it did notconstitute retaliation.
The fifth cause of action, for tortious interference with contract, was correctly dismissed.This claim is based on the allegation that Intesa induced Prudential, which provided disabilityinsurance to Intesa employees, initially to deny plaintiff's claim for disability benefits. Thecomplaint further alleges, however, that plaintiff subsequently persuaded Prudential to reversethis determination and to pay him benefits for the full period of his alleged disability. Because[*6]Prudential ultimately approved plaintiff's claim and paid allthe benefits he sought, it did not breach the contract, and, in the absence of an actual breach of acontract, no claim will lie against a third party (here, Intesa) for tortious interference with thatcontract (see e.g. NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 620-621[1996]). We note that the complaint, in alleging that Prudential initially denied the claim inreliance on information provided by Intesa, negates any inference that the initial denial,notwithstanding that it was subsequently corrected, was so lacking in good faith as to constitute abreach of contract by Prudential (see Sukup v State of New York, 19 NY2d 519, 522[1967]).
The eighth cause of action, for defamation, was correctly dismissed. Plaintiff's allegations of"statements to the effect that" and "or other words synonymous therewith" were not sufficientlyspecific (CPLR 3016 [a]; see e.g. BCRE230 Riverside LLC v Fuchs, 59 AD3d 282, 283 [2009]; Gardner v AlexanderRent-A-Car, 28 AD2d 667 [1967]), and he also failed to allege the time at which, the mannerin which, and the persons to whom the publication was made (Murphy v City of New York, 59 AD3d301 [2009]; see also Seltzer v Fields, 20 AD2d 60, 64 [1963], affd 14 NY2d624 [1964]). Plaintiff is not entitled to discovery to ascertain the particulars that are lacking(BCRE, 59 AD3d at 283; see also Cerick v MTB Bank, 240 AD2d 274 [1997]).
The ninth cause of action, for violation of medical privacy, was correctly dismissed, sincedefendants are neither physicians nor employees of a nursing home or a facility providinghealth-related services (cf. Doe v Community Health Plan—Kaiser Corp., 268AD2d 183, 187 [2000]; Randi A. J. vLong Is. Surgi-Ctr., 46 AD3d 74, 75, 82 [2007]). The Health Insurance Portability andAccountability Act and its regulations do not create a private right of action (see Jurado v Kalache, 29 Misc 3d1005, 1009 [2010] [citing cases]), and the other statute plaintiff cites (42 USC §12112[d] [3] [B], [C]) is inapplicable here.
Finally, the seventh cause of action, for the withholding of wages in violation of article 6 ofthe Labor Law, should be dismissed. Article 6 of the Labor Law does not apply to plaintiffbecause he was an executive earning more than $900 per week (see Labor Law §198-c [3]; Fraiberg v 4KidsEntertainment, Inc., 75 AD3d 580, 583 [2010]). Concur—Andrias, J.P, Friedman,and Román, JJ.
Sweeny and Renwick, JJ., dissent in part in a memorandum by Renwick J., as follows:Plaintiff Giuseppe Romanello is a former executive of defendant Intesa Sanpaolo, S.p.A., anItalian bank. He worked there for 25 years, in the Bank's New York office, until his terminationfor not returning to work following medical leave. Plaintiff sued his former employer, claiming,inter alia, that he was a disabled person under the New York State and New York City HumanRights laws and that defendant violated those laws when it discharged him because of hisdisability. Unlike the majority, I would find that plaintiff has stated a cause of action foremployment discrimination pursuant to the reasonable accommodations requirement of NewYork State Human Rights Law (Executive Law § 290 et seq.) (NYSHRL) and NewYork City Human Rights Law (tit 8 of the Administrative Code of the City of NY) (NYCHRL)that has not been refuted by the evidence adduced by defendants. Accordingly, I respectfullydissent to the extent the majority affirms the dismissal of the first and second causes of action,which alleged that defendants failed to comply with the reasonable accommodations [*7]requirement of NYSHRL and NYCHRL.
The undisputed facts relevant to the claim of failure to accommodate are as follows. In earlyJanuary 2008, plaintiff became ill, which forced him to be absent from work. He suffered severevisual disturbances, the inability to read or concentrate and a feeling that he was going to passout. When he tried to return to work later that month, he also suffered from panic. He wasultimately diagnosed with major depression, syncope and collapse, neurasthenia, and anxiety.Four months later, on May 29, 2008, the bank's lawyer told plaintiff's lawyer, "Mr. Romanello'sFMLA [i.e., leave pursuant to the Family and Medical Leave Act, 29 USC § 2601 etseq.] expires on June 3, 2008 and the bank would appreciate knowing whether he intends toreturn to work." On June 2, plaintiff's lawyer replied, "Mr. Romanello remains unable to return towork in any capacity because of his disabling conditions . . . [He has] an uncertainprognosis and a return to work date that is indeterminate at this time." Without engaging in anyfurther communication with plaintiff, the bank immediately terminated plaintiff, effective June 4,2008.
In order to state a prima facie case of employment discrimination due to a disability underboth NYSHRL and NYCHRL, plaintiff must demonstrate that he suffered from a disability andthat his employer failed to meet its statutory duty to "provide reasonable accommodations to [his]known disabilities . . . in connection with a job or occupation sought or held"(Executive Law § 296 [3] [a]; see Pimentel v Citibank, N.A., 29 AD3d 141 [2006],lv denied 7 NY3d 707 [2006]; Timashpolsky v State Univ. of N.Y. Health ScienceCtr. at Brooklyn, 306 AD2d 271, 273 [2003], lv denied 1 NY3d 507 [2004]).
The issue of whether plaintiff suffered a disability as defined by the NYSHRL and NYCHRLis not in contention. Nor can it be seriously disputed that an employee who cannot return to workafter exhausting all available leave provided by law or company policy may be still be a qualifiedindividual entitled to additional leave as a reasonable accommodation (see e.g. Phillips v City of New York,66 AD3d 170, 177 [2009] [the City's policy of entertaining requests for extended medicalleaves by permanent civil service employees only, and not by city employees withnoncompetitive civil service titles, violated requirement of NYSHRL and NYCHRL thatemployers engage in individualized interactive process to try to find a reasonable accommodationfor disabled employees]; see also Picinich v United Parcel Serv., 321 F Supp 2d 485,503-505 [ND NY 2004]). A leave of absence may qualify as a reasonable accommodationbecause it permits an employee to pursue or continue medical treatment until the employee canreturn to work to perform the normal functions of the job (see e.g. Phillips, 66 AD3d at179 ["plaintiff needed the requested leave to be able to have and recover from cancer surgery,after which time she anticipated that she would be able to return to work"]).
Nevertheless, the majority holds that the aforementioned June 2nd letter from plaintiff'slawyer to his employer obviated the bank's obligation to offer some accommodation for plaintiff'sdisabilities, as a matter of law, because "[t]he letter essentially shut the door to any furtherdiscussion" since "the letter threatened litigation if its demands were not met." The majority,however, reaches this legal conclusion upon a gross distortion of the facts.
The majority states that "[t]he dissent does not dispute that an employee does not invite an'interactive process' by threatening to sue the employer if it fails to grant his initial, maximaldemand." Contrary to the majority's interpretation, however, the letter from plaintiff's counselnever "threatened litigation if its demands [for an accommodation] were not met." The majorityreaches this incorrect factual determination, it appears, by ignoring the context of plaintiff'scounsel's statements. As the majority is well aware, plaintiff's counsel's statements were made[*8]in response to his employer's explicit inquiry as to "whetherhe intend[ed] to return to work or to abandon his position." In response, counsel explicitly stated,inter alia, that "if there is to be any severance of the employment relationship between [plaintiff]and [Intesa], it will be of [Intesa's] volition only and not an 'abandonment of position' by[plaintiff]." Thus, it was in an effort to emphasize that plaintiff had no intention to sever theemployee/employer relation that the "threat" of litigation took place, and not, as the majoritymis-characterizes it, as a "threat[ ] to sue the employer if it fails to grant his initial, maximaldemand."
Accordingly, the documentary evidence proffered by defendants does not utterly refuteplaintiff's factual allegations or conclusively establish a defense as a matter of law so as tocompel the dismissal of the cause of action for employment discrimination for failure to providea reasonable accommodation pursuant to NYSHRL and NYCHRL. Viewed in a light mostfavorable to plaintiff, the letter conveyed that plaintiff did not wish to "sever" theemployee/employer relationship that had existed for 20 years. Rather, plaintiff wished to return towork, but he could not provide a return date because of his "uncertain prognosis." Nor diddefendants show that a material fact alleged by plaintiff was "not a fact at all" or "that nosignificant dispute exist[ed] regarding it" (Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]).
Significantly, the majority's position appears to be internally inconsistent. On the one hand,the majority argues that defendant did engage in an interactive process, albeit "by. . . implication" (emphasis added), when it asked plaintiff "whether [he]intend[ed] to return to work or to abandon his position." According to the majority, this question,"by necessary implication, also sought the time frame within which plaintiff expected to be ableto resume working." On the other hand, the majority argues that defendant did not have to engagein an interactive process because plaintiff's counsel's response to the employer's question of whenplaintiff was coming back was an "unequivocal demand for indefinitive leave, coupled with thethreat of litigation." Either way, the majority cannot come to grips with the fact that it can onlymaintain these contradictory positions by treating the employer's letter in a light most favorableto the employer and paradoxically treating plaintiff's counsel's letter in a light least favorable tothe employee. Of course, this may be a reasonable position for the jury to take at trial, but not forthis Court to take when evaluating a motion to dismiss based on documentary evidence that issubject to reasonable interpretations.
Fundamentally, the majority's conclusions about the intent of the June 2nd letter arise from amisunderstanding of the key that opens the door to protection under NYSHRL and NYCHRLwith respect to reasonable accommodation of disabilities. First, the majority misses the pointthat, while usually it is the employee who first raises the subject of a specific accommodation, norequest by the employee is required to trigger the employer's duty to provide reasonableaccommodations to the employee's known disabilities. Rather, under NYSHRL and NYCHRL,the employer's duty is triggered once it knows of a disability and the employee's desire for anaccommodation (see Executive Law § 296 [3]; 9 NYCRR 466.11 [j], [k];Administrative Code of City of NY § 8-107 [1] [a]). Thus, what matters under the humanrights laws is not the manner in which the request for an accommodation is made, but whetherthe employee provided the employer with enough information under the circumstances that theemployer can be said to know both of the disability and the desire for an accommodation. In thiscase, the majority cannot dispute that the letter from plaintiff's counsel put the employer onnotice of the need for an accommodation by stating that plaintiff "remain[ed] unable to return to[*9]work in any capacity because of his disabling conditions."
The majority also seems oblivious to the fact that the first step in providing reasonableaccommodations for a disabled employee is to engage in a good faith interactive process thatassesses the employee's needs and the feasibility of a reasonable accommodation(Phillips, 66 AD3d at 176; Pimentel, 29 AD3d at 148; see also Parker vColumbia Pictures Indus., 204 F3d 326, 337-338 [2nd Cir 2000]). "Th[is] interactive processcontinues until, if possible, an accommodation reasonable to the employee and employer isreached" (Phillips, 66 AD3d at 176). Thus, an employer that receives proper notice thatan employee suffers from a disability cannot escape its duty to engage in an interactive processsimply because the employee did not come forward with a specific request for an accommodationat the inception of the process.
The interactive process is critical because the issue of the need for an accommodation raiseshighly "fact-specific" and individualized questions about the precise limits caused by a person'sdisability and the range of accommodations available for a disability that are consistent with theemployer's business need and other appropriate considerations (see e.g. Phillips, 66AD3d at 175-176). Accordingly, it would make little sense to insist that the employee must arriveat the end of the interactive process before the employer has a duty to participate in the process.That approach would effectively eliminate the requirement that employers participate in theprocess in good faith. It would unfairly exploit the employee's lack of information about the typeof accommodation that the employer may be able to provide. It is also in the employer's interestto engage in the interactive process. If an employer fails to engage in the interactive process, itmay fail to discover a reasonable accommodation for the employee's disability.
Consistent with this legal framework, this Court's recent pronouncement on the subject, Phillips v City of New York (66 AD3d170 [2009]), makes clear that a claim of failure to accommodate a disability cannot bedismissed where the employer has failed to engage in an interactive process. Phillipsinvolved a cancer-stricken employee terminated for not returning to work following medicalleave. The City Department of Homeless Services (DHS) hired Phillips in 1988 to fill anoncompetitive civil service title. In 2006, Phillips was diagnosed with cancer, and was granted12 weeks of medical leave. Before she returned to work, Phillips requested additional time off,but this request was denied. DHS explained that the 12-week medical leave was granted underthe Family and Medical Leave Act, and that she was ineligible for additional unpaid medicalleave as an employee in a noncompetitive title. DHS warned Phillips that she could be terminatedif she failed to return to work after the 12-week period. Phillips did not return to work, and heremployment and medical benefits were terminated. Phillips sued the City, claiming that she wasa disabled person under NYSHRL and NYCHRL, and that the City violated those laws bydenying her request for additional leave and terminating her employment. Supreme Court grantedDHS's motion to dismiss the case, and Phillips appealed.
This Court reversed, finding that the City should have evaluated the request foraccommodation, instead of summarily denying it. This Court ruled that the City was wrong todeny the request without first engaging in a good faith interactive process that assessed Phillips'sneeds and the feasibility of an accommodation. The human rights laws required the City toparticipate in this process with employees holding non-competitive titles, as well as permanentemployees (Phillips, 66 AD3d at 177). Similarly, in this case, the bank should haveevaluated the feasibility of accommodating plaintiff's disabilities, rather than summarilyterminating him upon the expiration of his medical leave.
I do not mean to suggest that an employer will be held liable under NYSHRL and [*10]NYCHRL for any failure whatsoever to engage in the interactiveprocess. An employer may not be held liable for a failure to provide reasonable accommodationbased on its failure to engage in an interactive process absent a showing that the breakdown ofthe process led to the employer's failure to accommodate (see Hayes v Estee Lauder Cos., Inc., 34 AD3d 735 [2006]).Conversely, a claim of discrimination cannot be dismissed where, as here, the record does notestablish that the interactive process would not have yielded a reasonable accommodation.
In addition to ignoring the importance of the interactive process, the majority fails to takeinto account that the Local Civil Rights Restoration Act of 2005 (Local Law No. 85 [2005] ofCity of NY), requires that a NYCHRL claim be evaluated under a more liberal approach andseparately from its state and federal counterparts (Albunio v City of New York, 16 NY3d 472, 477-478 [2011];see also Phillips, 66 AD3d at 182-183; Administrative Code § 8-130). Specifically, asAlbunio points out, "we must be guided by the Local Civil Rights Restoration Act of2005 (LCRRA), enacted by the City Council 'to clarify the scope of New York City's HumanRights Law,' which, the Council found 'has been construed too narrowly to ensure protection ofthe civil rights of all persons covered by the law' (Local Law No. 85 [2005] of City of NY§ 1)" (16 NY3d at 477).
Significantly, as it pertains to this case, pursuant to NYCHRL, the burden of establishing aninability to accommodate falls squarely upon the employer. "In any case where the need forreasonable accommodation is placed in issue, it shall be an affirmative defense that the personaggrieved by the alleged discriminatory practice could not, with reasonable accommodation,satisfy the essential requisites of the job" (Administrative Code § 8-107 [15] [b]).Moreover, "unlike the ADA, there are no accommodations that may be 'unreasonable' if they donot cause undue hardship" (Phillips, 66 AD3d at 182). All accommodations are deemedreasonable unless the employer proves that an accommodation constitutes an undue hardship(id.).
In sum, plaintiff has provided enough facts to state a disability discrimination claim underboth NYSHRL and NYCHRL. Accordingly, I would reinstate the employment discriminationclaims because defendant has not established that it complied with the reasonableaccommodations requirement of the laws. [Prior Case History: 2010 NY Slip Op31341(U).]
Footnote 1: The Phillips case, onwhich plaintiff and the dissent rely, is not controlling. The cancer-stricken plaintiff inPhillips did not issue an ultimatum (through counsel) for an indefinite leave of absence,but merely "requested" a one-year extension of her medical leave (Phillips v City of NewYork, 66 AD3d 170, 172 [2009]). After that request was denied, she "ask[ed]. . . if she could obtain any further extension of her medical leave," whichher employer also denied (id.).
Footnote 2: The logic of the dissent'sassertion that our position is "internally inconsistent" eludes us. Intesa's May 29 letter was anattempt to open an interactive process between itself and plaintiff, to which plaintiff responded,through his counsel's June 2 letter, by threatening litigation unless Intesa met his maximaldemand for indefinite leave. Contrary to the dissent's further contention, we are not applyingdifferent interpretative standards to the letters, but giving each one its only reasonableinterpretation. By ignoring the language in plaintiff's counsel's June 2 letter that plainly threatenslitigation, the dissent essentially concedes that, even when viewed in the light most favorable toplaintiff, this language cannot reasonably be interpreted as part of a good faith interactiveprocess.
Footnote 3: "Notwithstanding my lack ofadditional information from Prudential, I note and reiterate certain things in response to yourletter. First is that Mr. Romanello has, since on or about January 9, 2008, been suffering fromsevere and disabling illnesses that have prevented him, and continue to prevent him, fromworking in any capacity, let alone in the capacity in which he had been serving Intesa SanPaolo(the 'Bank') until that time. Mr. Romanello's illnesses are disabilities, both within the meaning ofthe Bank's long term disability benefits plan, sponsored by the Bank through the New York StateBankers Association and insured with Prudential, and pursuant to statute, including theAmericans with Disabilities Act, 42 USC § 12101, et seq., the New York StateHuman Rights Law, Exec. L. § 290, et seq. and the New York City Human RightsLaw, NYC Admin. Code § 8-101, et seq.
"Your letter states, presumably on the basis of Prudential's alleged determination that Mr.Romanello ceased to be eligible for short term disability benefits on April 3, 2008, that 'Mr.Romanello's FMLA expires on June 3, 2008 and the bank would appreciate knowing whether heintends to return to work or abandon his position.' In response, we advise you that Mr. Romanelloremains unable to return to work in any capacity because of his disabling conditions, which havebeen amply documented.
"We do not know the content of or basis for Prudential's decision with respect to Mr.Romanello's short term disability benefits, but suggest you may be reading too much intowhatever communication from Prudential you received. Prudential's website indicates Mr.Romanello has a long term disability insurance claim opened and pending as of May 19, 2008.For his part, Mr. Romanello has not at any time evidenced or expressed an intention to 'abandonhis position' with the Bank. Rather, he has been sick and unable to work, with an uncertainprognosis and a return to work date that is indeterminate at this time. Accordingly, if there is tobe any severance of the employment relationship between Mr. Romanello and the Bank, it willbe of the Bank's volition only and not an 'abandonment of position' by Mr. Romanello; and theBank will bear any related consequences and liabilities for its termination of Mr. Romanello'semployment in such circumstances. Whether or not the Bank chooses to sever its employmentrelationship with Mr. Romanello at this time, Mr. Romanello remains entitled to continuedpayments pursuant to the Bank's salary continuation policy for a period of six months after hisdisability began. Your confirmation that this benefit will continued [sic] to be provided will beappreciated; if it will not be, a detailed explanation for the reasons why will also be appreciated."