Jernigan v. Dalton Management Co.
Jernigan v. Dalton Management Co.
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
Marty V. Jernigan brings suit against his former employers, Dalton Management Company, LLC (“Dalton”) and Fifth & 106th Street Associates, Inc. (“Associates”) (together, “Defendants”), alleging employment discrimination on the basis of disability in violation of the Americans with Disabilities Act (“ADA”),
II. BACKGROUND
Jernigan was employed as a superintendent for the Lakeview Apartments (“Lake-
The parties dispute the scope and essential functions of a superintendent position. Defendants emphasize that superintendents must regularly perform hands-on maintenance work, including the “essential function” of “using and maintaining cleaning agents and paints, and supervising others using chemical cleaning agents and paints.”
In March 2008, Jernigan took a short-term disability leave, during which time he underwent surgery for a total hip replacement.
On October 15, 2008, Berry assigned Jernigan to paint the gate surrounding the Lakeview complex.
You presented us with a letter from your doctor dated October 20, 2008 indicating that because of your asthma condition you cannot be exposed to any chemicals.
This makes you less than 100% fit to perform your duties as superintendent. Therefore, effective immediately you are hereby terminated.22
On October 23, 2008, plaintiff filed a grievance with his Union alleging wrongful termination.
Please be advised that on October 27, 2008, your union representative was contacted regarding your layoff.... As discussed, you were to return to your position as Superintendent of Lakeview Apartments effective October 29, 2008, which you failed to do.
It is imperative that you contact me ... to discuss when and if you plan on returning to work.25
Jernigan contends he never received the October 30 letter, but he does acknowledge that he was aware, through communication with his Union representative, that Defendants were willing to rehire him.
In June 2009, Jernigan applied for and received Social Security Disability Insurance (“SSDI”) based on asthma, insomnia, and a hip replacement
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
“In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.”
IV. APPLICABLE LAW
The ADA creates a private right of action for disability-based employment dis
Y. DISCUSSION
For the purposes of this motion, Defendants concede or do not contest that (i) Jernigan has a disability within the meaning of the statutes, (ii) the Defendants had notice of his disability, and (iii) the Defendants failed to accommodate plaintiffs disability by terminating him.
A. Jernigan Is a Qualified Individual
1. Jernigan Is Not Estopped by His SSDI Application
Defendants argue that Jernigan’s ADA claim must be dismissed because he admitted in his SSDI application that he was “unable to work” due to his asthma as of October 15, 2008, and he thus admitted that he was not a qualified individual— capable of performing essential functions of his job — under the ADA. While it is true that “[j]udicial estoppel applies to sworn statements made to administrative agencies such as the Social Security Administration[,]”
Nor does the law erect a strong presumption against the recipient’s success under the ADA. Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant’s motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could “perform the essential functions” of her previous job, at least with “reasonable accommodation.”50
In determining whether statements made in the SSDI context are consistent with
Although Jernigan admitted that he was “unable to work” for the purposes of an SSDI application, that statement does not, in itself, estop him from claiming he was capable of performing essential job functions under the ADA, because unlike the Social Security Act, the ADA contemplates reasonable accommodation. Thus, Jernigan’s ADA claim is not entirely precluded, but he is bound by the purely factual statements made in the SSDI application, including that he had a hip replacement, suffered from asthma and insomnia, and that his difficulty breathing limited his ability to do some aspects of his job. These statements are, however, entirely consistent with Jernigan’s statements in this action for relief under the ADA, and do not preclude the possibility that Jernigan could have — with or without reasonable accommodation — performed all of the essential functions of his position.
2. The Essential Functions of Jernigan’s Position Are a Disputed Issue of Material Fact
Defendants contend that, even if Jernigan is not entirely estopped from bringing an ADA action, under Cleveland v. Policy Management Systems, Corp. he must provide a “sufficient explanation” as to why he was both “unable to work” under the SSA and able to “perform the essential functions” of his job under the ADA. While Jernigan does not expressly address this legal issue, he disputes a more basic factual question — namely, the “essential functions” of his former position as superintendent at Lakeview.
As set forth in the EEOC regulations, factors relevant to determining whether a job function is essential include:
the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring the plaintiff to perform the function, mention of the function in any collective bargaining agreement, the work experience of past employees in the job, and the work experience of current employees in similar jobs.55
Viewing the facts in the light most favorable to the non-moving party and drawing all reasonable inferences in his favor, I cannot say as a matter of law that essential functions of Jernigan’s position included tasks such as cleaning and painting that required chemical-fume exposure. Thus, it is reasonable to infer that Jernigan was a qualified individual — able to perform all of his position’s essential functions — for purposes of making an ADA claim.
3. Whether Jernigan Could Perform Tasks Requiring Chemical Exposure With Reasonable Accommodation Is a Disputed Issue of Material Fact
In arguing that Jernigan was incapable of performing essential functions of his job, Defendants rely heavily on Jernigan’s October 20, 2008 doctor’s note, which states that “[b]eeause of severe asthma, Mr. Jernigan should not be exposed to chemicals.”
B. Defendants Made an Unconditional Offer of Reinstatement
It is settled law that a victim of employment discrimination is required to mitigate his lost wages by “us[ing] reasonable diligence in finding other suitable employment.”
Even accepting Jernigan’s assertion that he did not receive the October 30, 2008 letter — which was addressed to him and more clearly states an offer “to return to [his] position as Superintendent of Lakeview”
Jernigan has cited nothing about the offer of reinstatement, or his understanding of the offer as made through his Union representative, that would permit a reasonable juror to infer it was not unambiguously unconditional. Indeed, Jernigan answered “Yes” when asked in his deposition, “Were you told by the Union [representative] that you were still being offered your job back [in the days following October 27th]?”
VI. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted in part and denied in part. The Clerk of Court is directed to close this motion (Docket # 22). A conference is scheduled for August 18, 2011 at 4:00 PM.
SO ORDERED.
. See 42 U.S.C § 12101 et seq.
. See N.Y. Exec. Law § 290 et seq.
. See N.Y.C. Admin. Code § 8-101 et seq.
. See Defendants' Statement of Undisputed Facts in Accordance with Local Rule 56.1 ("Def. 56.1”) ¶ 1.
. See id. ¶ 3.
. See Plaintiff's Response to Defendants’ Statement of Undisputed Facts (“Pl. 56.1”) ¶ 3.
. See Def. 56.1 ¶ 2.
. Id. ¶¶ 4-5.
. PL 56.1 ¶¶ 4-5.
.See id. ¶ 7.
. See id. ¶ 12.
. Jernigan Deposition, Appendix C to Pl. 56.1 ("Jernigan Dep.”) at 68, lines 6-11.
. See PL 56.1 ¶ 15.
. See Def. 56.1 ¶ 9.
. Id. ¶¶ 8-9.
. See id. ¶¶ 10.
. See PL 56.1 ¶ 12.
. See id.
. See Def. 56.1 ¶ 13.
. Id. ¶ 14.
. See id. ¶ 17.
. 10/21/08 Letter from Berry to Jernigan, Ex. D to Affidavit of Stacey Berry In Support of Defendants Motion for Summary Judgment ("Berry Aff.”).
. See Affidavit of Frank Monaco In Support of Defendants’ Motion for Summary Judgment V 3.
. 10/27/08 Letter from Berry to Union, Ex. E to Berry Aff. (“10/27/08 Letter”).
. 10/30/08 Letter from Berry to Jernigan, Ex. F to Berry Aff. ("10/30/08 Letter”).
. Pl. 56.1 ¶ 21. Jernigan denies that he believed they were "unconditionally” willing to rehire him. See id. ¶ 19.
. See id. ¶ 20; Jernigan Dep. at 165, lines 18-20 (explaining why he rejected the offer, Jernigan stated, "my situation [i.e. asthma] that [Defendants] used to terminate me has not been addressed whatsoever [in the offer]”).
. Def. 56.1 ¶ 22.
. SSDI Disability Report, Ex. F to Affidavit of Sal Meli, Defendants’ counsel, In Support of Defendants’ Motion for Summary Judgment ("Meli Aff.”), Sec. 2 at 2.
. Id. (emphasis in original).
. See Affidavit of Plaintiff Marty V. Jernigan in Opposition to Defendants' Motion for Summary Judgment ("Jernigan Aff.”) ¶ 21.
. Fed.R.Civ.P. 56(c).
. Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
. Miner v. Clinton County, 541 F.3d 464, 471 (2d Cir. 2008). Accord Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
. Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). Accord In re September 11 Litig., 500 F.Supp.2d 356, 361 (S.D.N.Y. 2007) ("Where the nonmoving party bears the burden of proof at trial, the burden on the moving party may be discharged by showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.”) (quotation marks and citations omitted).
. Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct 1348, 89 L.Ed.2d 538 (1986)).
. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)).
. Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006) (quoting Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505).
. McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing Anderson, 477 U.S. at 242, 255, 106 S.Ct. 2505).
. Id. (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)).
. Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009). Accord Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009).
. See 42 U.S.C. § 12112(a).
. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
. DeRosa v. National Envelope Corp., 595 F.3d 99, 102 (2d Cir. 2010) (quoting Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 (2d Cir. 2000)).
. Kinneary v. City of New York, 601 F.3d 151, 158 (2d Cir. 2010) (citing Shannon v. New York City Transit Auth., 332 F.3d 95, 103-04 (2d Cir. 2003)).
. See Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment at 5.
. Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005).
. DeRosa, 595 F.3d at 103 (citing Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999)).
. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999).
. Id. at 797-98, 119 S.Ct. 1597.
. Parker, 204 F.3d at 333.
. Cleveland, 526 U.S. at 802, 119 S.Ct. 1597.
. See also DeRosa, 595 F.3d at 104 ("[A] simple averment that one is disabled for the purposes of an SSDI application does not preclude the argument that one could, with reasonable accommodation, be gainfully employed. The statement 1 am disabled’ on an SSDI application should generally be taken as a statement that T am disabled for the purposes of the Social Security Act.’ The Social Security Act does not concern itself with reasonable accommodation.”). Cf. Parker, 204 F.3d at 333 ("In particular, summary judgment may be appropriate under Cleveland where the SSDI and ADA claims 'involve directly conflicting statements about purely factual matters.’ ”) (quoting Cleveland, 526 U.S. at 802, 119 S.Ct. at 1601).
. Cleveland, 526 U.S. at 807, 119 S.Ct. 1597.
. Price v. City of New York, 264 Fed.Appx. 66, 68-69 (2d Cir. 2008) (citing Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (quoting 29 C.F.R. § 1630.2(n))).
. 29 C.F.R. § 1630.2(n)(1).
. Berry Aff. ¶ 4.
. See Work Schedule Guide, Ex. G to Meli Aff. However, the Work Schedule Guide appears to cover all employees covered by the CBA, including handymen, porters, etc. Thus, the inclusion of cleaning and maintenance tasks in the Guide does not clearly signify that superintendents are required to perform such tasks.
. Price, 264 Fed.Appx. at 69 (quoting Stone, 118 F.3d at 97).
. See Jernigan Dep. at 38, lines 11-12; 5/29/09 Doctor's Letter, Ex. H to Meli Aff. (stating that “exposure to chemicals and cleaning solutions at work exacerbate his symptoms and should be strictly avoided”).
. See Work Schedule Guide at 1 ("Superintendent to keep record of staff's personal days and vacation days[,] ... to post all government required signs[,] ... to distribute all government mandatory notices [,] ... [and] to post whereabouts in building[.] Superintendents will comply with all government requirements / regulations ...").
. Def. 56.1 ¶ 14.
. Id. ¶ 17.
. Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000).
. Indeed, concerning Jernigan’s complaint, an EEOC investigator ruled, "[Defendants'] ’100% fit' policy does not allow accommodation for individuals with disabilities[.]” EEOC Determination, Ex. 3 to Jernigan Aff.
. Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125 (2d Cir. 1996) (quotation marks and citations omitted).
. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 908 (2d Cir. 1997) (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 234, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982) (holding that an employer charged with discrimination in hiring can toll the continuing accrual of backpay liability under § 706(g) of Title VII by unconditionally offering the claimant the job previously denied)).
. Robles v. Cox & Co., Inc., 154 F.Supp.2d 795, 807 (S.D.N.Y. 2001) (quoting Lightfoot, 110 F.3d at 908).
. Clarke v. Frank, 960 F.2d 1146, 1151 (2d Cir. 1992) (citing Pierce v. F.R. Tripler & Co., 955 F.2d 820, 830 (2d Cir. 1992)).
. 10/30/08 Letter.
. 10/27/08 Letter.
. See Plaintiff’s Memorandum of Law in Opposition to the Defendants' Motion for Summary Judgment at 6.
. 10/27/08 Letter (emphasis added).
. Miano v. AC & R Advertising, Inc., 875 F.Supp. 204, 221 (S.D.N.Y. 1995) (citing Ford Motor Co. 458 U.S. at 232, 102 S.Ct. 3057). Accord Lightfoot, 110 F.3d at 909 ("[b]y definition, an unconditional offer may not require the employee to abandon or modify his suit”); Eastmer v. Williamsville Cent. School Dist., 977 F.Supp. 207, 216 (W.D.N.Y. 1997) ("An unconditional offer is one in which the plaintiff is not required to give up any claims for damages, including damages for back pay that accrued before the offer was made, in exchange for the offer.”).
.Jernigan Dep. at 165, lines 8-10 (emphasis added).
Reference
- Full Case Name
- Marty V. JERNIGAN v. DALTON MANAGEMENT COMPANY, LLC, Fifth & 106th Street Associates, Inc., and Lakeview Apts.
- Cited By
- 2 cases
- Status
- Published