OPINION AND ORDER
After filing charges of disability discrimination with the United States Equal Employment Opportunity Commission (“EEOC”), Plaintiff Pauline Francis (“Plaintiff’) commenced the instant action against her former employer, Wyckoff Heights Medical Center (‘Wyckoff’ or the “Hospital”), and one of her former supervisors, Betty O’Hagan (“Ms. O’Hagan”) (collectively, “Defendants”). Plaintiff alleges that Defendants discriminated against her on the basis of disability, and failed to accommodate her disability, in violation of the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. §§ 12101 et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101 et seq.1 (See Complaint (“Compl.”) ¶¶ 32-54, Dkt. Entry No. 1.) Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendants move for summary judgment dismissing this action in its entirety. (See Defs.’ Mem. In Supp. of Mot. For Summ. Judgment. (“Defs.’ Mem.”), Dkt. Entry No. 46-83.) Plaintiff opposes. (See Pl.’s Mem. in Opp. to Defs.’ Mot. for Summ. Judgment (“PL’s Opp’n”), Dkt. Entry No. 47.) Also before the Court is Defendants’ motion to strike the Declaration of Neil Steinkamp, dated January 15, 2015 (“Steinkamp Decl.”), Dkt. Entry No. 47-79, which Plaintiff opposes. (See
BACKGROUND2
1, The Parties and Relevant Non-Parties
Plaintiff is a survivor of breast cancer. She was stricken with the disease and treated for it during the time she was employed at Wyckoff, a not-for-profit teaching Hospital in Brooklyn, New York. Plaintiff began her employment at Wyck-off in 1994, when she was hired to work in the housekeeping department. (Def.s’ Local Rule 56.1 Statement of Material Facts (“Defs.’ 56.1”) ¶ L Dkt. Entry No. 46-82; PL’s Local Rule 56.1 Response to Def.s’ Statement of Material Facts (“Pl.’s 56.1 Resp.”) ¶ 1, Dkt Entry No. 47-1.) In 2002, Plaintiff became a nursing technician in Wyckoffs emergency department, a position re-designated in 2010 as an Emergency Department Technician (“EDT”). (Defs.’ 56.1 ¶ 2; Pl.’s 56.1 Resp. ¶ 2.) Plaintiff was assigned to the night shift, which ran from 11 P.M until 7 A.M., and worked in that role until her employment was terminated on July 15, 2011. (Defs.’ 56.1 ¶¶ 1-3; Pl.’s 56.1 Resp. ¶¶ 1-3.)
As an EDT, Plaintiffs routine responsibilities included drawing blood, checking patient vital signs and blood glucose, transporting, patients around the hospital, performing CPR when necessary, monitoring psychiatric patients, and maintaining documentation in electronic medical records.. (Defs.’ 56.1 ¶ 67; Pl.’s 56.1 Resp. ¶ 67.) Am EDT was expected to be able to perform these functions in emergency situations, as the Hospital often treated patients suffering from heart attacks, strokes, gunshot wounds, and other traumatic, life-threatening injuries. (Defs.’ 56.1 ¶ 69; Pl.’s 56.1 Resp. ¶ 69.) Dependent on the day and' patient volume, Wyckoffs emergency department would have anywhere from four to five, and sometimes six, EDTs on staff during a typical overnight shift. (Defs.’ 56.1 ¶ 71; Pl.’s 56.1 Resp. ¶ 71.)
For some duration prior to 2009, Plaintiff was supervised by an Assistant Patient Care Manager in the emergency department named Digna Ignacio (“Ms. Ignacio”). (Declaration of Digna Ignacio, dated January 14, 2015 (“Ignacio Decl.”) ¶¶ 1-2, Dkt. Entry No. 47-77.) In September 2009, Ms. O’Hagan was appointed Director of Nursing in the emergency department and replaced Ms. Ignacio as Plaintiffs supervisor. (Defs.’ 56.1 ¶ 13; Pl.’s 56.1 Resp. ¶ 13.) As Director, Ms. O’Hagan managed daily operations in the emergency department, which included overseeing EDTs and other emergency department personnel. (Defs.’ 56.1 ¶¶ 13-15; Pl.’s 56.1 Resp. ¶¶ 13-15.) Certain aspects of personnel management also were overseen by Joseph Foti (“Mr. Foti”), the Labor Relations Manager in Wyekoffs Human Resources Department beginning in October 2010. (Declaration of Joseph Foti, dated Dec. 5, 2014 (“Foti Decl.”) ¶ 1, Dkt Entry No. 46-74.)
II. Wyckoffs Policies
As a part of her job, Ms. O’Hagan enforced Hospital policies in order to ensure departmental finances and a high level of patient care. (Defs.’ 56.1 ¶¶ 14-15; Pl.’s 56.1 Resp. ¶¶ 14-15.) Mr. Foti also was involved in advising on and administering Hospital policies. (Defs.’ 56.1 ¶¶ 19-21; Pl.’s 56.1 Resp. ¶¶ 19-21.) Such policies included,
The Attendance Policy required Hospital employees “to maintain a high standard of attendance at all times.” (Ex. 17 to the Declaration of Barbara E. Hoey, dated Dec. 8, 2014 (“Hoey Decl.”), Dkt. Entry No. 46-18.) Under the policy, employees were subject to progressive discipline for “excessive absenteeism,” defined as “any chronic, patterned or frequent absence.” (Id.) The first instance of excessive absenteeism could result in a warning; the second instance, if within 12 months, a final warning/suspension; and the third instance, if within 12 months, termination. (Id.) In addition, the Attendance Policy required any employee not reporting for work to call a supervisor to explain the absence, or else face disciplinary action. (Id.) Under Wyckoffs Time Policy, Hospital employees were required to be at work at their scheduled start time and to remain there through the end of their, respective shift. (Ex. 18 to the Hoey Decl., Dkt. Entry No. 46-19.) Similar to the Attendance Policy, the Time Policy imposed progressive discipline for incidents of “excessive lateness,” defined as three. or more instances of unexcused lateness in a given month, or a single instance of lateness in excess of 30 minutes. (Id.) After four incidents of excessive lateness within a calendar year, the policy called for termination of the non-compliant employee. (Id.)
Wyckoffs Employee Handbook, distributed to all employees including Plaintiff, set forth standards for-employee attendance and timeliness consistent-with those in the Attendance and Time Policies. (Defs.’ 56.1 ¶¶ 50-58; Pl.’s 56.1 Resp. ¶¶50-58; see also Ex. 16 to the Hoey Decl., Dkt. Entry No. 46-17.) In addition to the above policies, Wyckoff also maintained a general disciplinary policy that consisted of four steps: (1) a warning; (2) a final written warning; (3) suspension; and (4) termination. (Defs.’ 56.1 ¶¶ 50-58; Pl.’s 56.1 Resp. ¶¶ 50-58.) This progressive scale of discipline was mandated under the collective bargaining agreement maintained with Wyckoff by Plaintiffs union, 1199 SEIU. (Defs.’ 56.1 ¶¶ 4, 62; Pl.’s 56.1 Resp. ¶¶4, 62.)
Plaintiff does not deny that she received copies of the above policies and, as a general matter, that they were applicable to her as a Hospital employee. (See, e.g., Defs.’ 56.1 ¶¶ 55-58; Pl.’s 56.1 Resp. ¶¶ 55-58.) Nevertheless, Plaintiff maintains that she was subjected to discipline under these policies with more frequency and severity than other Hospital employees. (See Defs.’ 56.1 ¶ 61; Pl.’s 56.1 Resp. 1161.) In particular, Plaintiff alleges that Ms. O’Hagan had the discretion to make adjustments or exceptions to these policies on a case-by-ease basis, but declined to do so in her case. (See Defs.’ 56.1 ¶¶ 45-48); Pl.’s 56.1 Resp. ¶¶ 45-48.)
In addition, Wyckoff represents that if an employee were to disclose a disability, it would take that disability into account in accordance with an ADA policy that it maintains before imposing any discipline. (Defs.’ 56.1 ¶ 49; Pl.’s 56.1 Resp. ¶ 49; see also Foti Decl. ¶ 8.) Thus, in the event an employee with a known disability violated the attendance requirements, Wyckoffs policy purportedly was to consider whether the disability caused the violation, and if so, whether an accommodation was required. (Defs.’ 56.1 ¶ 49; Pl.’s 56.1 Resp. ¶ 49.) Despite that policy, Plaintiff alleges that Defendants did not consider her disability or offer any accommodation when disciplining and ultimately terminating her in 2011. (Id.)
In 2002, Plaintiff was diagnosed with breast cancer and underwent surgery to remove her left breast and several lymph nodes. (Def.s’ 56.1 ¶82; PL’s 56.1 ¶82.) The surgery was successful and Plaintiff remains cancer free as of the filing of this action. (Pl.’s Local Rule 56.1 Counter-Statement of Material Facts (“PL’s 56.1”) ¶ 5, Dkt. Entry No. 47-1; Defs.’ Local Rule 56.1Response to PL’s Counter-Statement of Material Facts (“Defs.’ 56.1 Resp.”) ¶ 5, Dkt. Entry No. 48-1.) However, as a result of her surgery, Plaintiff claims to have developed a condition known as lymphede-ma. (Id.)- Lymphedema refers to swelling caused by a-buildup of fluid in the body’s lymphatic -system, which may result from removal of the lymph nodes. (Ex. 8 to the Declaration of Amanda H. Freyre, dated Jan. 16, 2015 (“Freyre Decl.”), Dkt. Entry No. 47-10.)
Since her surgery, Plaintiff allegedly has suffered from symptoms of lymphedema that “flare up” intermittently, sometimes lasting hours but other times lasting weeks or even months. (Declaration of Pauline Francis, dated Jan. 24, 2015 (“Francis Decl.”) ¶ 4, Dkt. Entry No. 47-76.) According to Plaintiff, the symptoms she experiences include “severe pain, swelling and stiffness in [her] left shoulder, chest wall, arm, wrist, hand, and fingers.” (Id. ¶ 5.) Furthermore, when suffering from such symptoms, - Plaintiff allegedly is unable to grasp, lift, push, or pull, and even has difficulty concentrating and speaking due to the pain. (Id.) As such, Plaintiffs duties as an EDT, which involved pushing, pulling, and heavy lifting to transport and physically manipulate patients, among other tasks, purportedly strained her and even contributed to her lymphedema symptoms. (Id. ¶¶ 6-7; see also Ex. 8 to the Freyre Decl.)
IV. Plaintiffs Employee Record Prior to Ms. O’Hagan’s Arrival
In August 1994, shortly after Plaintiff began working in Wyckoff s housekeeping department, she was disciplined for “excessive and patterned sick calls.” (Ex. 9 to the Freyre Decl., Dkt. Entry No. 47-11.) Aside from that infraction, Plaintiff was not disciplined for absenteeism at any other time prior to her cancer diagnosis in 2002. (Pl.’s 56.1¶ 1; Def.s’ 56.1 Resp. ¶ 1.) Following her diagnosis, Wyckoff granted Plaintiff a leave of absence of approximately one year for cancer treatment and recovery. (Def.s’ 56.1¶ 84; Pl.’s 56.1 Resp. ¶ 84.) Such leave was permitted under Hospital policy and under the collective bargaining agreement Plaintiffs union maintained with Wyckoff. (Id.) In November 2003, Plaintiff returned to work and was reinstated as a nurse technician in the emergency department. (Def.s’ 56.1 ¶ 87; Pl.’s 56.1 Resp. ¶87.) Plaintiff continued to follow a medical regimen that included seeing her oncologist and taking an oral medication called Tamoxifen, but she did not at any point receive chemotherapy. (Def.s’ 56.1 ¶¶ 89-90; Pl.’s 56.1 Resp. ¶ 89-90.)
On December 9, 2003, Plaintiff received a memorandum of counseling that cited her “unsatisfactory attendance.” (Ex. 28 to the Hoey Decl., Dkt. Entry No. 46-29.) Plaintiffs March 2004 performance evaluation similarly rated Plaintiff as needing improvement in the area of “[r]eports to work on time and as scheduled.” (Ex. 29 to the Hoey Decl., Dky. Entry No. 46-30.) In all other categories, including those pertaining to patient care, Plaintiff either met or exceeded expected standards. (Id.) Her manager commented that, while Plaintiff needed to improve her “lateness,” she was “excellent in her role as nurse technician.” (Id.) Plaintiffs April 2005 performance review substantially was -the same, docking her for deficient timeliness and attendance
Plaintiff took another approved medical absence from work between March 2006 and April 2007. (Def.s’ 56.1 ¶ 95; Pl.’s 56.1 Resp. ¶ 95.) The paperwork Plaintiff submitted in connection with her leave request was signed by her general practitioner, Dr. Tawadrous, and indicated that she required treatment for cancer of the left breast and “lymphedema.”3 (Ex. 32 to the Hoey Deck, Dkt. Entry No. 46-33.) When Plaintiff returned to work in 2007, she continued to call out sick on a regular basis. On August 2, 2007, Plaintiff received a verbal warning for “unacceptable amounts of sick calls.” (Ex. 33 to the Hoey Deck, Dkt. Entry No. 46-34.) As memorialized, the warning stated that Plaintiffs unacceptable use of sick calls, which amounted to seven instances in a span of 20 shifts, “affects the staffing of the unit and is taxing on your coworkers.” (Id.) Similarly, in September 2007, Plaintiff received a final warning for her “poor attendance” and “unacceptable amount of sick calls.” (Ex. 34 to the Hoey Deck, Dkt. Entry No. 46-35.) Nevertheless, Plaintiff was not subject to further discipline until January 30, 2008, when she received a one-day unpaid suspension due to her “patterned sick usage.” (Ex. 35 to the Hoey Deck, Dkt. Entry No. 46-36.)
Consistent -with past reviews, Plaintiffs March 2008 performance review rated her as needing improvement in timeliness and attendance, but as meeting or exceeding expected standards in all other respects. (Ex. 37 to the Hoey Decl., Dkt. Entry No. 46-38.)-Ms. Ignacio, Plaintiffs supervisor at the time, commented that Plaintiff was capable of performing her job responsibilities, but needed to improve “most especially on lateness, no show and sick .calls.” (Id.) On July 17, 2008, Plaintiff received another final warning, reprimanding her for 33 instances of sick calls between August 5 and December 31,2007, and another 42 instances of sick calls between January 1 and July 14, 2008. (Ex. 38 to the Hoey Decl., Dkt. Entry No. 46-39.)
Plaintiffs April 2009 performance review was similar to her prior reviews, except that she actually improved her rating from “meets the standard” to “exceeds the standard” in several assessment categories. (See Ex. 40 to the Hoey Decl., Dkt Entry No. 46-41.) Nevertheless, Plaintiff still received the same poor marks for attendance and timeliness that she had received in the past. (Id.) Ms. Ignacio commented that, while Plaintiff could “perform assigned tasks and some added responsibilities,” she had “been out ill for so many days.” (Id.) On May 7, 2009, Ms. Ignacio issued Plaintiff a final warning based upon her “tremendous amount of sick calls.” (Ex. 41 to the Hoey Decl., Dkt. Entry No. 46-42,) The warning explicitly noted that the sick calls were “due to [Plaintiffs] condition.” (Id.) In her declaration, Ms. Ignacio states that she was referring to Plaintiffs “cancer and related
V. Plaintiffs Employee Record Under Ms. O’Hagan
Plaintiff alleges that her frequent absences from work, allegedly caused by her lymphedema, were tolerated by Wyckoff for several years. In fact, Ms. Ignacio states in her declaration that, despite repeatedly citing Plaintiff for absenteeism between 2007 and 2009, she did not seek to terminate Plaintiff because she “wanted to find ways to accommodate her illness.” (Id. ¶¶ 6-7.) According to Plaintiff, this policy changed when Ms. O’Hagan became her supervisor and refused to accommodate her frequent sick calls. Plaintiff believes that Ms. O’Hagan “did not like [her] because of [her] disability and was a looking for a way to get rid of [her].” (Francis Decl. ¶ 14.)
In November 2009, shortly after Ms. O’Hagan was hired as Director, Plaintiff again went on extended medical leave.4 (Def.s’ 56.1 ¶ 114; Pl.’s 56.1 Resp. ¶ 114.) Plaintiff took another medical leave of absence from February 8, 2010 through April 27, 2010. (Def.s’ 56.1 ¶ 131; Pl.’s 56.1 Resp. li 131.) When Plaintiff returned to work, she continued to call out sick as she had in the past. On June 18, 2010, one of Plaintiffs superiors notified Ms. O’Hagan that she had counseled Plaintiff regarding her lateness and absenteeism, and- reminded her that further infractions would result in progressive discipline. (Ex. 52 to the Hoey Decl., Dkt. Entry No. 46-52.) On December 14, 2010, Ms. O’Hagan issued Plaintiff a verbal warning for her unsatisfactory timeliness and attendance, and also issued a second verbal warning for her failure to reactivate “Med Tech” access needed to perform glucose tests on patients. (Exs. 56 and 57 to the Hoey Decl., Dkt. Entry Nos. 46-57 and 46-58.) As memorialized, the warning noted that Plaintiffs inability to perform glucose tests “impacts [emergency department] operations and potentially patient safety.” (Ex. 56 to the Hoey Deck)
In February 2011, Plaintiff requested another leave of absence. The paperwork she submitted merely indicated “medical leave” as the reason for her request. (Ex. 59 to the Hoey Decl., Dkt. Entry No. 46-60.) Upon reviewing Plaintiffs time records, Mr. Foti determined that she had not worked enough hours to qualify for leave under the Family and Medical Leave Act (“FMLA”). (Id.) Mr. Foti notified Plaintiff that she was not eligible for FMLA leave by letter dated March 8, 2011, which he sent to Plaintiffs address on record. (Id.)
When Plaintiff did not come into work, Defendants took her off the schedule from March 13 to April 9, 2011. (Def.s’ 56.1 ¶ 152; Pl.’s 56.1 Resp. ¶ 152.) Nevertheless, Plaintiff came into work on March 18, 2011 to complete a class for a certification that had expired. (Def.s’ 56.1 ¶ 154; Pl.’s 56.1 Resp. ¶ 1540 Plaintiff was cleared to work by the Employee Health Sendee, but allegedly began to suffer from an upset stomach while attending the certification class. (Defis’ 56.1 ¶ 157; Pl.’s 56.1 Resp. ¶ 157.) She attempted to inform Ms. O’Hagan of her stomach issues, but Ms. O’Hagan purportedly brushed her off and told her that “everyone is fed up of [her] and tired of [her].” (Ex. 1 to the Freyre Decl., Dep. Tr. of Pauline Francis (“Francis Dep.”) at 135:20-136:1, Dkt. Entry No. 47-3.) Distraught, Plaintiff left work and did not return. (Def.s’ 56.1 ¶ 157; P.’s 56.1 Resp. ¶ 157.) Given her clearance by the Employee Health Service, Plaintiff was placed back on the work schedule starting on April 10, 2011. She nevertheless remained at home and did not return to work until May 6, 2011. (Defis’ 56.1 ¶ 163; Pl.’s 56.1 Resp. ¶ 163; Ex. 61 to the Hoey Decl.) In total, not counting any of the days between March 13 and April 9, 2011 when Defendants took her off the schedule, Plaintiff was scheduled for 70 days of work between January 1 and May 7, 2011. (See Ex. 61 to the Hoey Decl.) Out of those 70 days, Plaintiff was a “No Call/No Show” for 41 days: (Id.)
While Defendants allege that Plaintiff did not provide any documentation to explain those absences, Plaintiff points- to two notes from Dr. Bharel she submitted. (Def.s’ 56.1 ¶ 162; Pl.’s. 56.1 Resp. ¶ 162.) The first, covering the period from February 16 to March 17, 2011, indicated that Plaintiff was under Dr. Bharel’s care for breast cancer, edema of the left arm, neuralgia, and myalgia. (Ex. 44 to the Freyre Decl., Dkt. Entry No. 47-46.) The second, covering April 5 through May 6, 2011, stated only that Plaintiff was “sick.” (Ex. 67 to the Freyre Decl., Dkt. Entry No. 47-70.) During Plaintiffs absence, both her union delegate, Eloise. Johnson (“Ms. Johnson”), and Ms. O’Hagan repeatedly tried to contact Plaintiff by telephone, but were unsuccessful. (Def.s’ 56.1 ¶ 169; Pl.’s 56.1 Resp. ¶ 169.) Ms. Johnson testified that, when she finally spoke to Plaintiff and asked her why she did not. contact anyone about her absence, Plaintiff responded that she “didn’t feel like answering the telephone.*’ (Ex. 4 to the Hoey Decl., Dep. Tr. of Eloise Johnson (“Johnson Dep.”) at 87:2-8, Dkt. Entry No. 46-5.) Plaintiff denies making that statement. (Francis Dep. at 317:2-5.)
During her absence in February, March, and April 2011, despite allegedly believing she was on approved medical leave, Plaintiff worked part-time as an in-home aide for an elderly couple named Mr. and Mrs. Karton. (Def.s’ 56.1 ¶ 140; Pl.’s 56.1 Resp,
Plaintiff returned to work on May 6, 2011 and was cleared by the Employee Health Service. (Def.s’ 56.1 ¶ 164; Pl.’s 56.1 Resp. ¶ 164.) However, based on her unapproved absence, Plaintiff received a final warning for being “absent without authorization, failing to call, and failing] to comply with the hospital’s leave of absence policy/process.” (Ex. 11 to the Hoey Decl., Dkt. Entry No. 46-12.) The warning noted that future non-compliance would result in progressive discipline, including suspension and termination. (Id.) On June 21, 2011, Ms. O’Hagan suspended Plaintiff for three days without pay for continuing to call out sick and arrive late. (Ex. 9 to the Hoey Decl., Dkt. Entry No. 46-10.) The disciplinary notice Plaintiff received indicated that she called out sick on May 27, June 9, and June 15, 2011, was late for work on four additional days during the same timespan, and failed to “swipe out” when leaving work one of those days in violation of Hospital policy. (Id.) The Notice further indicated that termination would result from future non-compliance. (Id.) However, Defendants admit that June 9, 2011 was listed as an absence in error, as Plaintiff was not scheduled to work that day. (Def.s’ 56.1 ¶ 187; Pl.’s 56.1 Resp. ¶ 187.) While Defendants allege that Plaintiff never notified them of the mistake, Plaintiff testified that she told Ms. O’Ha-gan about the error, but she refused to do anything about it.6 (Francis Dep. at 226:13-227:5.)
Plaintiff returned from suspension on June 25, 2011. During her shift on June 28, 2011, Plaintiff was sent to see an emergency room doctor and was diagnosed as having “bleeding” and “generalized weakness.” (Def.s’ 56.1 ¶ 190; Pl.’s 56.1 Resp. ¶ 190.) The doctor instructed Plaintiff to go home and rest. Plaintiff did so, failing to “swipe out” when leaving work. (Def.s’ 56.1 ¶ 191; Pl.’s 56.1 Resp. ¶ 191.) Plaintiff subsequently sought treatment at New York University Hospital, where she was diagnosed with fibroids unrelated to her cancer or lymphedema. (Def.s’ 56.1 ¶ 193; Pl.’s 56.1 Resp. ¶ 193.) Thereafter, Plaintiff submitted a note to . Defendants from Dr. Bharel, stating that she could return to work on a “full duty no restrictions” basis on July 5, 2011. (Ex. 22 to the Hoey Decl, Dkt. Entry No. 46-23.)
Following this incident, Ms. O’Hagan emailed Mr. Foti to seek advice regarding what action to take with respect to Plaintiff. Ms. O’Hagan noted that Plaintiff “has not worked enough hours to apply for FMLA and to date has not applied for 1199 disability.” (Ex. 68 to the Hoey Decl., Dkt. Entry No. 46-69.) Mr. Foti replied: “Monitor her time and attendance and let me know [if] she calls out her next scheduled date. Also monitor her punch in and
VI. Events Following Plaintiffs Termination
On July 27, 2011, a grievance hearing was held regarding Plaintiffs termination. The hearing was attended by Plaintiff, Ms. O’Hagan, and Mr. Foti, as well as Ms. Johnson and other union representatives. At the hearing, Plaintiff was offered the opportunity to resign her employment and coordinate with her union to obtain disability benefits. (See, e.g., Ex. 3 to the Hoey Decl., Dep. Tr. of Joseph Foti (“Foti Dep.”) at 338:3-389:15, Dkt. Entry No. 46-4.) According to Ms. Johnson and Ms. O’Hagan, Plaintiff initially agreed to this arrangement. (Johnson Dep. at 95:18-97:2; Ex. 2 to the Hoey Decl., Dep. Tr. of Betty O’Hagan (“O’Hagan Dep.”) at 222:23-223:2, Dkt. Entry No. 46-3.) Plaintiff denies that she ever did. (Francis Dep. at 82:5-12; Francis Decl. ¶¶ 20-21.) Rather, Plaintiff alleges that she told Ms. O’Hagan and Mr. Foti that, although she had been sick due to her cancer, she wanted to continue working and physically was able to do so. (Francis Dep. at 270:4-15; Francis Decl. ¶ 20.) In response, Ms. O’Hagan allegedly told Plaintiff that she was “seriously ill” and needed to “go on permanent government disability benefits.” (Francis Dep. at 270:4-6; Francis Decl. ¶ 20; Johnson Dep. at 97:5-8.) Ms. O’Hagan denies making that statement. (O’Hagan Dep. at 224:14-20; see also Foti Dep. at 341:11-15.)
Whatever the case may be, it is undisputed that Plaintiff ultimately refused to sign a settlement agreement memorializing the arrangement whereby she voluntarily would resign her employment. (Def.s’ 56.1 ¶ 215; Pl.’s 56.1 Resp. ¶ 215.) On August 3, 2011, while a determination on Plaintiffs grievance was still pending, Dr. Bharel wrote a note on behalf of Plaintiff, stating that she was “in good physical health” and “fit to do any job without any restrictions.” (Ex. 70 to the Hoey Decl., Dkt. Entry N. 46-71.) One day later, Mr. Foti issued a determination denying Plaintiffs grievance and upholding her termination. (Ex. 72 to the Hoey Decl., Dkt. Entry , No. 46-73.) According to the determination, Plaintiff admitted to time and attendance violations at the grievance hearing. (Id.)
STANDARD OF REVIEW
Summary judgment is appropriate when “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). “In ruling on a summary judgment motion, the district court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotations omitted). A fact is “material” within the meaning of Rule 56 when its resolution “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” when “the evidence is such that a reasonable jury
The moving party bears the burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] ... which it believes demonstrates the absence of a genuine issue of fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). Once the moving party has met its burden, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis omitted). The nonmoving party must offer “concrete evidence from which a reasonable juror could return a verdict in [its] favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The nonmoving party may not “rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the nonmoving party’s pleading.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532-33 (2d Cir.1993) (citations and ■ internal quotations omitted). “Summary judgment is appropriate only ’[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’ ” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir.2012) (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348).
DISCUSSION
I. Plaintiffs ADA Claims
The ADA, as amended by the ADA Amendment Act of 2008 (the “ADAAA”), Pub.L. No. 110-325 (2008), prohibits an employer from “discriminating] against a qualified individual on the basis of disability in regard to ... terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Proscribed acts under the statute include discriminatory discharge as well as failing to make reasonable accommodation for the known physical limitations of an otherwise qualified individual with a disability, unless such accommodation would impose an undue hardship on the employer. Id.; see also 42 U.S.C. § 12112(b)(5)(A).
Claims alleging disability discrimination and failure to .accommodate in violation of the ADA are analyzed using the burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir.2013) (citing McBride v. BIC Consumer Prods. Mfg. Co. Inc., 583 F.3d 92, 96 (2d Cir.2009)); see also Snowden v. Trustees of Columbia Univ., 612 Fed.Appx. 7, 8 (2d Cir.2015). Under that framework, the plaintiff bears the initial burden to estab
While the intermediary evidentiary burdens shift back and forth under the McDonnell Douglas framework, the ultimate burden of “persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”7 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citation omitted). Furthermore, “[i]n discrimination claims based both on adverse employment actions and on failures to accommodate, the plaintiff bears the burdens of both production and persuasion as to the existence of some accommodation that would allow [her] to perform the essential functions of [her] employment.” McMillan, 711 F.3d at 126 (quoting McBride, 583 F.3d at 97) (internal quotation marks omitted), 1
A. Discriminatory Discharge
■ To establish a prima facie case of discrimination under the ADA, a plaintiff must show by a preponderance of the evidence that:- “(1) [her] employer is subject to the ADA; (2) [s]he was disabled within the meaning of the ADA; (3) [s]he was otherwise qualified to perform the essential functions of [her] job, with or without reasonable accommodation; and (4) [s]he suffered adverse employment action because of [her] disability.” Sista, 445 F.3d at 169 (quoting Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir.2001)). Here, the Court addresses only the second and third elements of Plaintiffs prima fa-cie case, as it is undisputed that Wyckoff is subject to the ADA and that Plaintiff suffered an adverse employment action when she was terminated.
1. Whether Plaintiff Was “Disabled”
While Defendants argue at length that they were hot aware of Plaintiffs
Furthermore, to certify her need for medical leave, Plaintiff submitted physicians’ notes to Wyckoff that identified her diagnosis as lymphedema either explicitly by name, (see Ex.. 32 to the Hoey Decl.), or by describing common symptoms of lymp-hedema such, as edema. See, e.g., Ex. 46 to the Hoey Decl., Dkt. Entry No. 46-47; Ex. 44 to the Freyre Decl.) In 2003, Plaintiff also submitted a note from her general practitioner explaining that she was unable to lift or push heavy objects. (Ex, 21 to the Freyre Decl., Dkt. Entry No. 47-23.) While that recommendation could have been based on Plaintiffs general need to avoid physical strain after her surgery, Plaintiffs oncologist submitted a similar note in 2006 recommending that she be excused from “strenuous activities at her work place” due to her “underlined [sic] condition.” (Ex. 47 to the’Freyre Decl, Dkt. Entry No. 47-49.) From this evidence, as well as other evidence in the record, a reasonable juror could conclude that Plaintiff was disabled within the meaning of the ADA.
In addition, there is evidence in the record to support a reasonable conclusion that Defendants regarded Plaintiff as having a disability, which also comes within the meaning of a “disability” under the ADA. 42 U.S.C. § 12102(1)(C). To cite just one example, Plaintiff testified that Ms. O’Ha-gan told her she needed to go on permanent disability assistance, an allegation at least somewhat corroborated by Ms. Johnson’s testimony. (See Francis Dep. at 270:4-6; Francis Decl. 20; Johnson Dep. at 97:5-8.) Finally, the Court notes that even though Plaintiffs lymphedema allegedly flared up intermittently, that does not disqualify it from protection as a disability under the ADA. See 42 U.S.C. § 12102(4)(D) (“An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”) In sum, Plaintiff has made a showing of disability sufficient to establish the second element of her prima facie case.
2. Whether Plaintiff Was “Otherwise Qualified”
The remaining element of Plaintiffs prima facie case is the requirement to show that she was “otherwise qualified to perform the essential functions of [her] job, with or without reasonable accommodation.” Sista, 445 F.3d at 169 (quoting Giordano, 274 F.3d at 747.) Defendants contend that Plaintiff cannot demonstrate such qualification, given the extensive and well documented record of her absenteeism. Before reaching that question, the Court first considers whether regular and predictable attendance, in fact, was an essential function of Plaintiffs job. The Court begins from the proposition that regular attendance at work is “an essential requirement of virtually all employment.”
As an initial matter, the Court must give considerable deference to what functions Wyckoff deemed essential to Plaintiffs job, particularly in light of Wyckoff s obligation to ensure the “responsible provision of patient care in a hospital setting.” Davis v. New York City Health and Hosps. Corp., 508 Fed.Appx. 26, 29 (2d Cir.2013); see also McMillan, 711 F.3d at 126. The record is replete with evidence that Wyckoff considered regular and predictable attendance to be essential to Plaintiffs job. For example, Plaintiffs numerous employee reviews were recorded on an evaluation form that listed the specific “duties and responsibilities” of a nurse technician, among which was" “report[ing] to work on time and as scheduled.” (See, e.g., Exs. 29, 30, 37, 40 to the Hoey Decl.) Wyckoffs Time and Attendance Policies, as well as Wyckoffs employee handbook, similarly required Hospital employees to show up for work on time and as scheduled.8 (See Exs. 16, 17, and 18 to the Hoey Decl.) In fact, at her deposition, Plaintiff even agreed that she was expected to be at work on time and remain there for the duration of her shift. (Francis Dep. at 47:2-48-4.) Finally, whether by verbal warning, written warning, or suspension, Defendants repeatedly disciplined Plaintiff for her “unacceptable attendance” before ultimately terminating her for absenteeism. (See, e.g., Exs. 8, 9, 30, 33, 34, 35, 38, 41, 52 to the Hoey Decl.)
The conclusion that regular and predictable attendance was essential to Plaintiffs job is further supported by the very nature of her position, which entailed “providing basic care to patients, tracking and recording patients’ vital signs, and assisting doctors and nurses with procedures.” (Francis Decl. ¶ 2.) There is no evidence to suggest that Plaintiff reasonably could perform such duties remotely from home, or at any time other than her scheduled shift. See Ramirez, 481 F.Supp.2d at 221-22. Moreover, Plaintiff does not dispute that EDTs played a “vital role” in the Hospital’s response when a patient needed emergency medical care, a common occurrence in Wyckoff s emergency department because it regularly received patients suffering from heart attacks, strokes, gunshot wounds, and other deadly injuries. (Francis Dep. at 61:6-62:8.) Therefore, more than just ensuring orderly workplace function, regular and predictable attendance was essential because it was crucial to patient safety.9
Consistent with the foregoing, the Court has little difficulty concluding that regular and predictable attendance was essential to Plaintiffs job. Given the overwhelming evidence of Plaintiffs persistent, recurring, and un-remedied absenteeism between 2003 and 2011, the record is clear that Plaintiff was unable to perform that essential job function. See Rios, 351 Fed.Appx. at 505; Lewis, 908 F.Supp.2d at 327-28 (plaintiff not “otherwise qualified” because she could not perform essential function of “regularly showing up to work.”); Vandenbroek, 356 Fed.Appx. at 460; Lewis, 908 F.Supp.2d at 327-28. Plaintiffs union delegate testified that she was not aware of any other EDTs who-were absent as frequently as Plaintiff, (see Johnson Dep. at 142:7-14), while Plaintiff even admitted at her deposition that she ordinarily called out sick between one and ten times per month. (Francis Dep.' at 69:2-7.) In fact, given her record • of absenteeism, Plaintiff whs subject to discipline under Wyckoff s Attendance Policy for two or more unscheduled absences in a single month, even if those absences were due to sick calls. (See Exs. 16 and 17 to the Hoey Decl.; see also Pl.’s 56.1 ¶¶ 60-61; Def.s’ 56.1 Resp. ¶¶ 60-61.) Plaintiff cannot dispute that she repeatedly exceeded that limit. (See, e.g., Exs. 9, 31 (24 unscheduled absences in eight months), 33, 38 (75 unscheduled absences due to sick calls in less than a
a. Whether, With Reasonable Accommodation, Plaintiff Could Attend Work
The burden to demonstrate a reasonable accommodation is not a heavy one, requiring only that the plaintiff “suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” Id. (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.1995)). Under the ADA, reasonable accommodations may include, inter alia, “job restructuring, part-time or modified work schedules, [or] acquisition or modification of equipment or devices.” 45 C.F.R. § 84.12(b). However, it is beyond dispute that “[a] reasonable accommodation can never involve the elimination of an essential function of a job.” Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir.2003).
Here, Plaintiff proposes that Wyckoff should have allowed her to take “increased sick days” in excess of what was permissible under Hospital policy. (See Pl.’s Opp’n at 1, 17-20.) Plaintiff contends that Wyckoff actually accommodated her disability in this manner for several years, tolerating her need for frequent un scheduled absences until Ms. O’Hagan became Director and allegedly refused to continue doing so. (See Id. at 1, 5-6, 15.) However, under the ADA, a reasonable accommodation is one that enables a disabled employee to perform the essential functions of a job. See Davis, 508 Fed.Appx. at 29 (the ADA “affords a right to such reasonable accommodations as will allow the disabled individual to perform [essential] functions.”) By contrast, Plaintiffs request for as many sick days as needed would excuse her from the essential function of regular and predictable attendance. The law in this Circuit categorically holds that such an accommodation, which would eliminate an essential job function, is not reasonable. See Shannon, 332 F.3d at 100; see also Davis, 508 Fed.Appx. at 29.
Notably, Plaintiff does not suggest that the additional sick days she requests would be capped at any particular number, or conditioned on giving advance notice of an absence to Wyckoff. The fact that Plaintiff declines to make such assurances is understandable, as her claimed disability is chronic in nature and she presumably has no way of knowing when or how often it will render her incapable of working. However, that fact underscores the unreasonableness of Plaintiffs proposed accommodation, which essentially would let Plaintiff set her own work schedule according to personal needs, rather than those of her employer. Any such accommodation is not reasonable as a matter of law.11
Plaintiff nevertheless contends that her proposed accommodation is reasonable because Wyckoff cannot show that implementing it would cause undue hardship in the form of “significant difficulty or expense.” (See Pl.’s Opp’n at 19-20) (citing 42 U.S.C. § 12111(10)(A)). In support of this argument, Plaintiff submits a forensic analysis of timesheets for a period spanning nearly two years.13 See Steinkamp Decl. The analysis purports to show that Wyckoff only had to pay overtime on 19 occasions when Plaintiff called out sick during that period. (Id.) Karen Florio (“Ms. Florio”), a supervisor at Wyckoff, explained at her deposition that overtime pay could be avoided when an EDT called out sick if a nurse technician could be pulled in from another department that was overstaffed, or if part-time or per diem workers were available to work on short notice. (See Ex. 4 to the Freyre Decl., Dep. Tr. of Karen Florio (“Florio Dep.”) at 29:15-38:24, Dkt. Entry No. 47-3.) In addition to the allegedly minimal cost implications, Plaintiff also argues that her unscheduled absences never caused any specific, tangible harm to a patient. (See Pl.’s Opp’n at 20.)
Even affording Plaintiff all reasonable inferences, her argument fails because it fundamentally distorts the “reasonable accommodation” analysis under the ADA. It is not an employer’s burden to show that a proposed accommodation would be unduly difficult or expensive where, as here, that accommodation would eliminate the essential functions of a job. By way of example,
The plaintiff in Samper made essentially the same argument as Plaintiff, reasoning that the hospital where she worked demonstrably was capable of providing coverage for her nursing shift whenever she called out sick. See Samper, 675 F.3d at 1240. The Ninth Circuit nevertheless held that permitting the plaintiff as many sick days as she needed was not reasonable as a matter of law, as such accommodation “ignore[d] recognition of employer needs” and would “gut reasonable attendance policies.” Id. Here, Plaintiffs unscheduled absences similarly left Wyckoff in the position of haying to make last-minute arrangements to cover her shift on a recurring and unpredictable basis. Even if that did not entail significant expense or tangible harm to patients, it unreasonably interfered with Wyckoff s needs as an employer, and its right to set and enforce policies it deemed necessary to ensure the responsible provision of patient care. As such, irrespective of its cost implications, Plaintiffs proposed accommodation of “increased sick days” is not reasonable under the ADA.
Albeit in perfunctory fashion, Plaintiff alternatively argues that she requested, but was denied, an assignment to “light duty.”14 (See Pl.’s Opp’n at 20.) Whether that accommodation would have enabled Plaintiff to achieve regular and predictable attendance is disputed by the parties. However, the Court need not reach that question, as the record firmly establishes that a light duty assignment would eliminate essential functions of Plaintiffs job. While Plaintiff does not sufficiently describe what “light duty” would entail, she suggests that she needed to be excused from strenuous workplace tasks such as pushing heavy stretchers and lifting patients. (See, e.g., Pl.’s Opp’n at 1.)
However, Plaintiffs job description clearly stated that, among other “physical demands,” her position required “lifting, pulling, [and] pushing,” “frequently lift[ing] patients/objects from 10 lbs to 150 lbs,” “frequently pushing] objects up to 200 pounds,” “occasionally liftfing], with assistance, objects greater than 150 lbs,” and “occasionally carrying] objects weighing up to 50 lbs.” (See Exs. 29, 30, 37, and 40 to the Hoey Decl.) At her deposition, Ms. O’Hagan similarly testified that Plaintiffs position was a “heavy job,” a lot of which “involve[d] pushing and lifting.” (O’Hagan Dep. at 60:16-61:2.) According to Ms. O’Hagan, an EDT also needed to be able to physically intervene if a patient attempted to hurt him or herself, or tried to run away. (Id. at 61:12-19.) In fact, Plaintiff admits that her alleged lymphede-
It is also possible, through far from clear in her papers, that by “light duty” Plaintiff means she should have been reassigned to a different rotation within the emergency department, which would entail a separate, less physically demanding set of essential functions she was capable of performing.15 While reassignment to a vacant, existing position may constitute a reasonable accommodation under the ADA, the Second Circuit has held that an employer is not required to create an altogether new position for a disabled employee. See Graves v. Finch Pruyn & Co., 457 F.3d 181, 187 (2d Cir.2006); see also Palmieri v. City of Hartford, 947 F.Supp.2d 187, 203-04 (D.Conn.2013), Here, the only evidence to substantiate the existence of a light duty rotation for an EDT is the brief and somewhat vague deposition testimony of Ginette Brouard (“Ms. Brouard”), a nurse at Wyekoff who formerly worked with Plaintiff. She recalled that “three nurses and two techs” were given “light duty” while pregnant, by which she meant they were “assigned triage, outside triage, rather than in the holding area or the front ER.” (See Ex. 10 to the Hoey Reply Decl., Dep. Tr. of Ginette Brouard (“Brouard Dep.”) at 109:4-25, Dkt Entry No. 48-12.) Ms. Brouard did not recall the names of those employees and there is no evidence in the record to indicate when this occurred. (See Id.)
On the other hand, Ms. O’Hagan testified that she was not aware of any instance in which any EDT was placed on light duty. (O’Hagan Dep. at 62:3-7.) In his declaration, Mr. Foti similarly attested that there is no light duty assignment available to an EDT, as all employees in the emergency department needed to be cleared for full duty. (Foti Reply Decl. ¶ 10.) When Ms. Florio was asked at her deposition whether nurse technicians could be assigned to light duty, she responded unequivocally, “No, the person has to be full duty in nursing.” (Florio Dep. at 134:5-9.) In fact, in 2011, Ms. Brouard was denied an assignment to light duty that she requested due to pregnancy. In a letter informing Ms. Brouard of the denial, Ms. O’Hagan stated: “Please be advised that there is no light duty or modified assignments [in the emergency room] as per Human Resources .... You will need to be cleared for full duty or submit leave of absence documentation.” (Ex. 9 to the Hoey Reply Decl., Dkt. Entry No. 48-11.)
In light of the foregoing, Plaintiff fails to make a sufficient showing that a light duty
This conclusion is compelled even though Plaintiff was a capable worker by most accounts, aside from her poor attendance and punctuality. As Ms. Ignacio states in her declaration: “When Ms. Francis was at work, she always performed her job well and did the tasks assigned to her. However, Ms. Francis had problems with attendance and frequently called out sick.” (Ignacio Decl. ¶¶ 4-5.) Given her record of absenteeism, Plaintiff cannot establish that she was-“otherwise qualified” through evidence that she was a capable EDT on those occasions when she did show up for work. See Vandenbroek, 356 Fed.Appx. at 460. The ADA does not require an employer to retain an employee, no matter how capable, if he or she “fails to attend work on a- regular basis.” Ramirez, 481 F.Supp.2d at 221 (citing Bobrowsky v. New York City Bd. of Educ., 1999 WL 737919, at *4, *13 (E.D.N.Y. Sept. 16,1999)). Given Plaintiffs failure to demonstrate that she was “otherwise qualified,” she has not established a prima facie case of disability discrimination under the ADA. Accordingly, Defendants • are entitled to summary judgment dismissing Plaintiffs ADA discrimination claim.
B. Failure to Accommodate
To establish a prima facie case for failure to accommodate under the ADA, a plaintiff must show by a preponderance of the evidence that:.“(1).plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations”. McMillan, 711 F.3d at 125-26 (quoting McBride, 583 F.3d at 97).
The Court first examines the alleged conduct underlying Plaintiffs failure to accommodate claim. In 2003, Plaintiff submitted a note to Wyekoff from her general practitioner stating that she should not lift or push heavy objects. (Ex. 21 to the Freyre Decl.) Similarly, in 2006,
That parties’ disagreement as to whether the above letters constituted requests for accommodation largely is immaterial. Even assuming that they did, any claim under the ADA premised upon Wyckoffs denial of such requests in approximately 2003 and 2006 clearly would be time-barred. A plaintiff in New York must file a charge with the EEOC within 300 days of the defendant’s allegedly unlawful employment act before pursuing an ADA claim in federal court. 42 U.S.C. § 12117(a) (adopting the procedural filing requirements of 42 U.S.C. § 2000e-5); see also Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999). Notably, an employer’s denial of a requested accommodation does not give rise to a “continuing violation,” but is a discrete employment action that requires the plaintiff to file a charge with the EEOC within 300 days of the denial. See Kane v. Carmel Cent. Sch. Dist., 2014 WL 7389438, at *12-13 (S.D.N.Y. Dec. 15, 2014); see Ugactz v. United Parcel Serv., Inc., 2013 WL 1232355, at *5 (E.D.N.Y. Mar. 26, 2013) (citing Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir.2003)). Here, Plaintiff filed a charge with the EEOC on May 9, 2012, (see Ex. 26 to the Hoey Decl., Dkt. Entry No. 46-27), rendering untimely any claim premised upon Wyckoffs failure to accommodate Plaintiffs disability in 2003 or 2006.
Accordingly, though it could have been alleged with more clarity, Plaintiffs failure to accommodate claim seems to be premised upon: (1) Ms. O’Hagan’s purported refusal when she became Director to continue allowing Plaintiff to take as many sick days as she needed; and/or (2) Wyck-offs failure to engage in an “interactive process” with Plaintiff to assess whether her claimed disability could be accommodated in some manner.17 (See Pl.’s Opp’n at 14-15.) -In either case, Plaintiffs claim fails. Similar to a claim for discrimination under the ADA, a plaintiff alleging an employer’s failure to accommodate must demonstrate for purposes of her prima facie case that, “with reasonable accommodation, [she] could perform the essential functions of [her] job.” McMillan, 711 F.3d at 125-26 (quoting McBride, 583 F.3d at 97). This burden applies even where, as here, a plaintiffs failure to accommodate claim is based on allegations that the employer did not engage in the interactive process contemplated by the ADA. As the Second Circuit has explained: “[A]n employer’s failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA and evidence thereof does not allow a plaintiff to avoid summary
For the reasons already discussed with respect to Plaintiffs ADA discrimination claim, supra, Plaintiff has not met her burden to show that, with some reasonable accommodation, she could perform the essential function of regular and predictable attendance at work. As previously noted, an accommodation that would permit Plaintiff an unspecified number of unscheduled absences is not reasonable as a matter of law, while “light duty” either would eliminate essential functions of Plaintiffs job as an EDT, or would entail reassignment to a position that Plaintiff has not supported the existence of with sufficient evidence to create a genuine issue of fact. See Snowden, 612 Fed.Appx. at 9-10 (affirming dismissal of ADA claim based on failure to engage in the interactive process because the plaintiff “made no specific showing that a reasonable accommodation was available to her employer.”)
Furthermore, while the parties do not acknowledge it, Wyekoff did attempt to accommodate Plaintiffs claimed disability. In addition to the yearlong absence Plaintiff was permitted in order to undergo cancer treatment and recovery in 2002 and 2003, the record reflects that she was granted three additional extended periods of leave in 2006-2007, 2009, and 2010. (See Def.s’ 56.1 ¶¶ 95, 114, 131; Pl.’s 56.1 Resp. ¶¶ 95, 114, 131.) Although Wyekoff alleges that it was not properly authorized, Plaintiff also was on leave from work for several months in 2011. (See Def.s’ 56.1 ¶¶ 167-69; Pl.’s 56.1 Resp. ¶¶ 167-69.) Finally, Plaintiff was granted shorter periods of absence when needed, for example when she was excused from work between June 28 and July 5, 2011. (Ex. 68 to the Hoey Deck) Even with the benefit of these numerous periods of leave, Plaintiff was- not able to regularly and predictably attend work when she returned to the job. Having failed to demonstrate that she could perform that essential function of her employment, Plaintiff has not established a prima facie ease for failure to accommodate under the ADA. Accordingly, Defendants are entitled to summary judgment dismissing that claim as well.
II. Plaintiffs NYSHRL and NYCHRL Claims
As alleged in the Complaint, the only basis for federal subject matter jurisdiction over Plaintiffs NYSHRL and NYCHRL claims is supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). (See Compl. ¶ 4.) Having dismissed Plaintiffs federal claims under the ADA, the only claims over which it had original jurisdiction, the Court declines to exercise supplemental jurisdiction with respect to Plaintiffs remaining State law claims. See Tillman, 118 F.Supp.3d at 543 (“[T]he Second Circuit instructs that absent extraordinary circumstances, where federal claims can be disposed of pursuant to [Rule 56 of the Federal Rules of Civil Procedure], courts should abstain from exercising pendent jurisdiction.”) (quotation marks and citation omitted); O’Leary v. Town of Huntington, 2012 WL 3842567, at *15 (E.D.N.Y. Sept. 5, 2012); Missick v. City of New York, 707 F.Supp.2d 336, 354-55 (E.D.N.Y.2010).
III. Defendants’ Motion to Strike
Defendants move to strike the Steinkamp Declaration, and any argument based thereupon, on the ground that Plaintiff did not properly disclose Mr. Stein-kamp either as a fact or expert witness as
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted to the extent that Plaintiffs claims under the ADA are dismissed with prejudice. In light of the Court’s decision to decline to exercise supplemental jurisdiction, Plaintiffs claims under the NYSHRL and NYCHRL are dismissed without' prejudice. Finally, Defendants’ motion to strike is denied as moot.
SO ORDERED.
1.
Ms. O’Hagan is named only in the Second and Third Counts of the Complaint, alleging liability under the NYSHRL and NYCHRL. (See Compl. ¶¶ 45, 52.)
2.
The following facts are undisputed unless otherwise noted.
3.
Many of the medical notes or evaluations Plaintiff submitted to Wyckoff from her doctors, dating from after 2002, identified her diagnosis as including cancer. Where this is the case, a reasonable inteipretation is that Plaintiff’s doctors meant to indicate that she had a history of cancer potentially relevant to diagnosis, as it is undisputed that Plaintiff has not-suffered a recurrence of cancer after her 2002 surgery. (See Ex. 6 to the Freyre Decl., Dep. Tr. of Virendra Bharel ("Bharel Dep.”) at 74:21-75:2, Dkt. Entry No. 47-8.)
4.
Plaintiff's medical leave was approved on the basis of two certifications she submitted from her general practitioner, Dr. Virendra Bharel. Both certifications indicated that Plaintiff’s diagnosis was cancer of the left breast, requiring treatment by chemotherapy two times a week, (See Exs. 42 and 43 to the Hoey Decl., Dkt. Entry Nos. 46-43 and 46-44.) It is undisputed that Plaintiff never received chemotherapy, nor was she supposed to receive such treatment. The parties sharply dispute whether Dr. Bharel's certifications, indicating otherwise, were based upon intentional misrepresentations Plaintiff made to him. Defendants contend that they were, as Dr, Bhar-el testified at his deposition that Plaintiff told him she was undergoing chemotherapy. (Bharel Dep. at 64:8-14.) However, Dr. Bhar-el also states in his declaration that he believed Tamoxifen, the medication Plaintiff was prescribed after her surgery, was a type of chemotherapy drug. (Declaration of Virendra Bharel, dated July 29, 2014 (“Bharel Decl.”) ¶ 3, Dkt, Entry No. 47-75.) According to Mr. Foti, had Wyckoff known that Plaintiff's medical certifications were false, it would have been grounds for dismissal. (Foti Decl. ¶¶ 13-16.)
5.
Per hospital policy, Plaintiff was required-to provide Wyckoff with an updated address when she moved. (Def.s' 56.1 ¶ 160; Pl.’s 56.1 Resp, ¶ 160.) Plaintiff alleges that she fulfilled this responsibility by “telling Human Resources” about her new address. (Francis Decl. ¶ 16.)
6.
Defendants allege that, even if June 9, 2011 were excluded as an absence, Plaintiff still would have been subject to discipline under the Hospital’s Attendance Policy for missing two days of scheduled work within a single month. (Def.s' 56.1 ¶ 188; Pl.’s 56.1 Resp. ¶ 188.)
7.
There is an open question in this Circuit as to whether a plaintiff alleging discrimination under the ADA must show: (1) that his or her disability was the “but-for” cause of the employment action át issue, consistent with the causation standard applicable to claims for retaliation under Title VII of the Civil Rights Act of 1964, see Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), and claims under the Age Discrimination in Employment Act, see Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); or (2) that his or her disability was at least one “motivating factor” in the employer’s. decision, consistent with the causation standard applicable to claims for discrimination under Title VII, see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir.2015). See Maitland v. Konica Minolta Bus. Solutions U.S.A., Inc., 2016 WL 304884, at *5 (E.D.N.Y. Jan. 25, 2016); DeAngelo v. Yellowbook Inc., 105 F.Supp.3d 166, 175-76 (D.Conn.2015); Sherman v. County of Suffolk, 71 F.Supp.3d 332, 348 (E.D.N.Y.2014);
8.
In addition, Wyckoff s Labor Relations Manager, Mr. Foti, provided a declaration attesting that Wyckoff considered "steady, regular attendance” to be "essential to [Plaintiff’s] position as an Emergency Department Technician.” (Reply Declaration of Joseph Foti, dated Feb. 20, 2015 (“Foti Reply Decl.”) ¶¶ 2-3, Dkt. Entry No. 48-16.)
9.
Indeed, courts in this Circuit and in others consistently have recognized the particular need for healthcare professionals in a hospital setting to attend work on time and as sched*770uled. See, e.g., Guice-Mills v. Derwinski, 772 F.Supp. 188, 198-99 (S.D.N.Y.1991), aff'd 967 F.2d 794 (2d Cir.1992) (being at work on time an essential function of head nurse position); see also Samper v. Providence St. Vincent Med. Ctr., 673 F.3d 1233, 1238 (9th Cir.2012) ("regular on-site presence necessary” for neonatal nurse, given the at-risk patient population that could be affected by unscheduled absences); Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 469-470 (8th Cir.2007) (unscheduled absences rendered patient care technician not qualified to perform essential functions of job); Amato v. St. Luke’s Episcopal Hosp., 987 F.Supp. 523, 530 (S.D.Tex.1997) (regular attendance an essential function of nursing assistant’s job).
10.
Plaintiff further argues that another nurse technician in the emergency department had 33 documented instances of lateness on her record, but was not terminated by Wyckoff. (Pl.’s Opp’n at 18.) However, the record reflects that the employee in, question, although . not fired, was progressively disciplined. (Ex. 57 to the Freyre Decl., Dkt. Entry No. 47-59.) Moreover, Ms. O’Hagan testified that this employee’s instances of lateness, most of which involved arriving to work no more than 15 minutes late, (see Ex, 13-to the Reply Declaration of Barbara E. Hoey, dated Feb. 20, 2015 ("Hoey Reply Decl.”), Dkt. Entry No. 48-15), were not comparable in seriousness to Plaintiff's unscheduled absences. (O'Hagan Dep. at 237:20-238:18.)
11.
See Lewis, 908 F.Supp.2d at 327; Reddick v. Niagara Mohawk Power Co., 2010 WL 5185098, at *6 (N.D.N.Y. Dec. 16, 2010) (requests to tolerate "ábsences [that] are sporadic and unpredictable ... may be deemed unreasonable as a matter of law.”); Mescall v. Marra, 49 F.Supp.2d 365, 375 (S.D.N.Y.1999) (proposed accommodation of not counting sick days towards employee attendance record "unreasonable as a matter of law”); Aquinas v. Fed. Express Corp., 940 F.Supp. 73, 79 (S.D.N.Y.1996) (“permission to work only when .,. illness permits” is an unreasonable accommodation); see also Carr v. Reno, 23 F.3d 525, 531 (D.C.Cir.1994) (“[T]o require an employer to accept an open-ended 'work when able’ schedule for a time-sensitive job would stretch 'reasonable accommodation’ to *772absurd proportions and imperil the effectiveness of the employer’s public enterprise.”)
12.
For example, there is no evidence in the record that Plaintiff provided Wyckoff with a physician's note confirming her illness for every day she called out sick. Furthermore, in testifying at his deposition regarding patient records he maintained for Plaintiff, Dr. Bhar-el described instances where Plaintiff's medical complaints either were unrelated to her 2002 cancer surgery in his medical judgment, or could not be confirmed definitively as related or unrelated. (See Bharel Dep. at 46:4-53:17.) In fact, Dr. Bharel testified that he sometimes wrote a physician’s note for Plaintiff based only on her description of symptoms over the telephone, without actually examining her. (Id. at 61:10-16.)
13.
As addressed in Section III of this Opinion, infra, Defendants seek to strike the Steinkamp Declaration and any argument based thereupon.
14.
While the record suggests that Plaintiff never expressly asked for a light duty assignment, she contends that she requested such accommodation by submitting a physician’s note in 2003, and again in 2006, stating that she could not perform strenuous physical activity. (See Def.s’ 56.1 ¶ 130; Pl.’s 56.1 Resp. ¶ 130; see also Francis Decl. ¶¶ 9-10; Francis Dep. at 225:6-19.) This issue is discussed in Section I.B, infra, which addresses Plaintiff’s ADA claim for failure to accommodate.
15.
To the extent Plaintiff means she should have been transferred to a position outside the emergency department, in a capacity entirely different from an EDT, she does not present any evidence to suggest an existing, vacant position to which she could have been reassigned. See Thompson v. New York City Dep’t of Probation, 348 Fed.Appx. 643, 645 (2d Cir.2009) ("An ADA plaintiff seeking accommodation in the form of a transfer bears the burden of proving that a vacancy existed into which he or she might have been transferred.”) (citing Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir.2000)).
16.
Even if a temporary assignment to light duty existed, as Mr. Brouard suggested, Plaintiff does not explain how such an assignment would allow her to achieve regular and predictable attendance on a long-term basis. Cf. Palmieri, 947 F.Supp.2d at 202-03 (tempo-raiy assignment to light duty did not obligate employer to offer light duty position on a permanent basis, where plaintiff could not perform essential functions of a patrol officer.)
17.
The parties sharply dispute whether Plaintiff’s claimed disability was obvious or otherwise known to Wyckoff, such that Wyckoff was obligated to engage in an interactive process, even if Plaintiff did not expressly request an accommodation. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134-36 (2d Cir.2008). However, the Court need not reach that issue and. declines to do so.