Baron v. Advanced Asset & Prop. Mgmt. Solutions, LLC

15 F.Supp.3d 274

29 A.D. Cases 1410

David BARON, Plaintiff

v.ADVANCED ASSET AND PROPERTY MANAGEMENT SOLUTIONS, LLC, Defendant.

No. 11–CV–2155 DRHAKT.

United States District Court, E.D. New York.

Signed April 29, 2014.

Law Offices of Michael G. O'Neill, New York, NY, by: Michael G. O'Neill, Esq., Aaron N. Solomon, Esq., Theresa Bui Wade, Esq., for the Plaintiff.

Echert Seamans Cherin and Mellott LLC, by: Riyaz Gulam Bhimani, Esq., White Plains, NY, Echert Seamans Cherin and Mellott LLC, by: Jeffrey W. Larroca, Esq., Nicholas T. Moraites, Esq., Washington, DC, for Defendant.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

Plaintiff David Baron (“plaintiff” or “Baron”) commenced this action against Advanced Asset and Property Management Solutions, LLC. (“AAPMS” or “defendant”) for violating the Americans with Disabilities Act (“ADA”) and New York's Human Rights Law (“NYSHRL”) by terminating plaintiff's employment because of his disability. Presently before the Court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56. For the reasons set forth below, defendant's motion is denied.

Background

The following material facts, drawn from the parties' Local Civil Rule 56.1 Statements and evidentiary submissions, are undisputed unless otherwise noted.

In March, 2009, AAPMS, a property management company, hired plaintiff as an Assistant Controller for its office in Uniondale, New York. Plaintiff's job duties included, among other things, reviewing monthly financial statements and cash forecasts and handling corporate general ledgers and reporting for properties. Plaintiff replaced his predecessor, Elana Morin, who was fired due to poor work performance. Plaintiff notes that his hiring form clearly indicated that he was hired to replace Morin.

Plaintiff's Work Performance

The parties disagree as to the quality of plaintiff's work product. Defendant claims that Baron displayed “[s]ignificant work performance issues [that] began to occur shortly after [his] hire” and persisted throughout his employment. (Def.'s R. 56.1 Stmt. ¶¶ 4, 5.) According to defendant, plaintiff had difficulty generating cash forecasts. Additionally, defendant asserts that plaintiff was late cutting checks and issuing management fees, made errors on cash sheets, struggled in transferring data, failed to timely deliver weekly cash management or other reports, failed to deliver accurate cash management reports, entered spreadsheet information incorrectly, and made formula errors. According to defendant, plaintiff made errors on at least a weekly basis, failed to file a single monthly property management report in a timely fashion, failed to enter all transactions on a daily basis, and failed to correct errors or improve his performance. Generally, plaintiff denies these allegations and asserts that the troubled relationship between two of plaintiff's supervisors, Charles Zerbo (“Zerbo”) and Dana Connelly (“Connelly”) caused many of these alleged problems.

Plaintiff's Disability

In 2009, plaintiff developed aortic insufficiency caused by aortic valve leaking resulting in an insufficient volume of blood ejected through the aortic valve. In the middle of 2009, plaintiff's disease became so severe that his treating physician referred him to a cardiothoracic and vascular surgeon for an aortic valve replacement. About five or six weeks before he was terminated, plaintiff was advised by his doctor that he needed open heart surgery. It is undisputed that plaintiff is no longer disabled and currently has no physical limitations.¹ It is also undisputed that plaintiff's alleged disability did not affect his job performance.

Plaintiff's Termination

According to defendant, as a result of plaintiff's poor performance, defendant hired Esmeralda Vicente (“Vicente”) to replace plaintiff. Defendant claims that discussions regarding plaintiff's termination began weeks prior to June 25, 2009, the date it placed the ad that resulted in Vicente's hire, and before defendant was aware of plaintiff's heart condition. According to defendant, plaintiff never informed anyone at AAPMS about his medical condition other than Zerbo, and that was not until after June 25, 2009.

Plaintiff contends, however, that Vicente was not hired to replace plaintiff and notes that the “Human Resources Action Form,” which was generated when defendant hired Vicente, noted that Vicente was ‘an addition to staff,’ and she was given the title of Senior Property Accountant as opposed to plaintiff's former title of Assistant Controller. Moreover, plaintiff claims that the decision to terminate him was made after defendant hired Vicente, and after it became aware of plaintiff's alleged heart condition. In particular, plaintiff claims that he had conversations with Zerbo regarding his heart condition, and that he told Zerbo about the need for his surgery approximately 5–6 weeks prior to his termination. In addition, plaintiff contends that on one occasion, Zerbo told plaintiff that he would be reporting to Vicente, and when plaintiff asked Zerbo if he was going to be terminated, Zerbo replied, “you're sick and this is a business decision.” (Pl.'s R. 56.1 Stmt. ¶ 52.) Defendant denies this allegation, and Zerbo testified at his deposition that “if [he] said anything [at that time], [he said] it's a business decision to demote you down, it has nothing to do with you being sick.” (Def.'s R. 56.1 Response ¶ 52.)

Defendant claims that Vicente started work with defendant on or about August 9, 2009, and although at that time plaintiff was still an employee, Vicente was to transition into plaintiff's position. According to defendant, however, it decided to end the transition period and terminate plaintiff because he signed, without authorization, 20 checks totaling over $40,000 on or about September 14, 2009. Plaintiff does not dispute that he signed the checks, but contends that Connelly authorized him to sign the checks. Plaintiff was officially terminated on September 18, 2009.

Preservation of Evidence

Plaintiff alleges that defendant failed to sufficiently preserve relevant evidence because Annette Givelekian, defendant's Vice President of Human Resources, never instructed defendant's IT Department to recover emails relating to plaintiff. Defendant admitted in discovery that the only thing it did to preserve documents relating to plaintiff's claims following notice that plaintiff intended to make a claim against defendant was to request that all emails concerning plaintiff's termination and work deficiencies be printed out and provided to Ms. Givelekian so that the emails could be maintained. Ms. Givelekian kept any emails that were printed out and provided them to plaintiff in discovery. Moreover, plaintiff claims that the emails produced by defendant represent only a tiny fraction of the emails that were exchanged amongst plaintiff, Zerbo, Connelly, and others throughout plaintiff's employment. Plaintiff claims that the missing emails would show that the problems that defendant blames plaintiff for were actually caused by external factors and that the emails would have referenced tasks that plaintiff had successfully completed.

DISCUSSION

I. Applicable Law and Legal Standards

Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). The relevant governing law in each case determines which facts are material; “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the nonmovant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56(c) ).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996). The non-movant must present more than a “scintilla of evidence,” Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ), or “some metaphysical doubt as to the material facts,” Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993) (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) ), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on “mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir.1996) (internal citations omitted).

The district court, in considering a summary judgment motion, must also be “mindful of the underlying standards and burdens of proof,” Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir.1997) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir.1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id....