Bryan v. Mem'l Sloan Kettering Cancer Ctr.

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EDMUND HECTOR BRYAN, Plaintiff, v. MEMORIAL SLOAN KETTERING CANCER CENTER and HECTOR OTTEY, Defendants.

Civil Action No. 18 Civ. 1300 (AT) (SLC)

United States District Court, S.D. New York

May 18, 2022

REPORT & RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE ANALISA TORRES, United States District Judge:

I. INTRODUCTION

Pro se Plaintiff Edmund Hector Bryan (“Mr. Bryan”) filed this action against his former employer, Memorial Sloan Kettering Cancer Center (“MSK”), and former manager Hector Ottey (“Ottey,” together with MSK “Defendants”), alleging that Defendants discriminated and retaliated against him and subjected him to a hostile work environment on the basis of his disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (the “ADA”). (ECF No. 2). Defendants now move pursuant to Federal Rule of Civil Procedure 56 for summary judgment on each of Mr. Bryan's claims. (ECF No. 58 (the “Motion”)). For the reasons set forth below, the Court respectfully recommends that the Motion be GRANTED in its entirety.

II. BACKGROUND

A. Factual Background

The following facts are undisputed unless otherwise indicated and are taken from Defendants' statement pursuant to Local Civil Rule 56.1 (ECF No. 59), documents Defendants submitted in support of the Motion (ECF Nos. 61, 62), and Mr. Bryan's submission in response to the Motion (ECF No. 67 (the “Response”)). The Court construes the facts “in the light most favorable to” Mr. Bryan, the non-movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (citation omitted).

Local Civil Rule 56.1 requires a party moving for summary judgment to submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Loc. Civ. R. 56.1(a). In response, the nonmoving party must submit “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Loc. Civ. R. 56.1(b). “Each numbered paragraph in the statement of material facts . . . will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” Loc. Civ. R. 56.1(c). “A pro se litigant is not excused from” complying with Local Civil Rule 56.1, Brandever v. Port Imperial Ferry Corp., No. 13 Civ. 2813 (KBF), 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014), and “[a] nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009).

In this case, Defendants served and filed their Rule 56.1 statement (ECF No. 59), along with a notice pursuant to Local Civil Rule 56.2 advising Mr. Bryan of the potential consequences if he did not respond to the Motion. (See ECF Nos. 63 (notice to pro se litigant); 64 (certificate of service)). Despite this notice, Mr. Bryan did not file a responsive 56.1 statement. Nonetheless, the Court must still afford “special solicitude” to Mr. Bryan, a pro se litigant, and exercises its discretion “to conduct an assiduous review of the record,” including Mr. Bryan's Response, in deciding the Motion. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citation omitted); see Vasquez v. Reilly, No. 15 Civ. 9528 (KMK), 2018 WL 2768648, at *1 n.1 (S.D.N.Y. June 8, 2018) (collecting cases in which courts conducted independent review of the record where pro se plaintiff failed to submit a proper Rule 56.1 statement).

To the extent that Mr. Bryan, in his Response, makes factual allegations without citations to the record or that contradict his sworn testimony, the Court disregards those allegations. See Holtz, 258 F.3d at 73 (explaining that the court is not required to search the record to find genuine issues of material fact that a non-moving party failed to raise); Vasquez, 2018 WL 2768648, at *1 n.1 (disregarding plaintiff's factual assertions in opposition papers that lacked citation or contradicted his sworn testimony); Berry v. Marchinkowski, 137 F.Supp.3d 495, 502 n.1 (S.D.N.Y. 2015) (same). Moreover, Mr. Bryan's Response does not dispute many of the factual assertions in Defendants' 56.1 statement, and the Court therefore, “considers any uncontroverted [and properly supported] portions of [Defendants'] 56.1 statement admitted.” Moore v. Shahine, No. 18 Civ. 463 (AT) (KNF), 2021 WL 827694, at *4 (S.D.N.Y. Mar. 4, 2021) (citing Smith v. Planas, 975 F.Supp. 303, 305 n.2 (S.D.N.Y. 1997)).

1. MSK

MSK “is a not-for-profit institution that treats cancer patients and conducts research to improve and develop new cancer treatments and cures.” (ECF No. 62 ¶ 5). It maintains policies relating to providing equal employment opportunities (the “EEO Policy”) and prohibiting harassment, discrimination, and retaliation on the basis of, inter alia, disability. (ECF No. 59 ¶¶ 16; see ECF Nos. 62-1, 62-2). The EEO Policy “applies to all terms and conditions of employment, including but not limited to hiring, classification, promotion or transfer, discipline, discharge, layoff, compensation, job training, and benefits.” (ECF No. 62-1 at 2).^[1] MSK maintains a “Workplace Accommodations” policy (the “Accommodations Policy”), which reflects that MSK “encourages applicants and employees with disabilities to request accommodations if needed to perform essential job functions, and to participate in the interactive process of identifying and implementing such accommodations.” (ECF No. 59 ¶ 7; see ECF No. 62-3). The Accommodations Policy provides:

An employee with a disability may request an accommodation to perform the essential functions of his/her job. The employee will be asked to provide documentation from a healthcare provider verifying the need for such accommodation. The department will provide a reasonable accommodation to the employee after engaging in an interactive discussion with the employee and other applicable HR representative(s) to determine the nature of accommodation best suited to the situation, which does not place an undue burden or hardship on [MSK].

(ECF No. 62-3 at 2-3).

MSK also maintains several policies permitting its employees to request time off from work. One is MSK's “Vacation” policy (the “Vacation Policy”), which allows employees to “accrue vacation hours on a bi-weekly basis beginning from their date of hire” and based on various factors including “their salary grade, length of continuous service, and eligible hours.” (ECF No. 62-5 at 2)). “Employees must obtain approval for vacation in advance from their manager who will make determinations based on factors including the employee's length of service and the needs of the department.” (Id.) MSK allows employees to “use up to fifteen (15) hours of their vacation time per calendar year on an emergency basis to meet personal needs.” (Id. at 3). MSK also maintains a “Sick Time” policy that “applies to all MSK employees[.]” (ECF No. 62-6 (the “Sick Time Policy”) at 2). Specifically, MSK employees “may accrue a maximum of five hundred forty (540) hours of sick time[.]” (Id.) Under the Sick Time Policy, “[a]n employee requesting sick time for medical appointments with a healthcare provider must provide at least seven (7) days' advance notice to their employee's [sic] manager.” (Id. at 3). The Sick Time Policy makes clear that “sick days are not an entitlement equivalent to vacation days[,]” and that “[e]xcessive use of sick days without authorization pursuant to the Family and Medical Leave Act (‘FMLA'), the New York City Earned Sick Time Act (‘ESTA') or MSK's internal leave policies may result in corrective action up to and including termination of employment.” (Id. at 2 (emphasis original)). Mr. Bryan was aware of the Sick Time Policy and that excessive use of sick time could result in termination. (ECF No. 59 ¶¶ 33, 38).

Similarly, MSK has a “Family and Medical Leave” policy (the “FMLA Policy”). (ECF No. 59 ¶ 9; see ECF No. 62-4). Under its FMLA Policy, MSK “provides its eligible employees up to twelve (12) weeks of unpaid, job-protected leave in a twelve (12) month period for qualifying family and medical reasons[,]” including for a “chronic serious health condition that continues over an extended period of time, requires periodic visits to a healthcare provider, and may involve occasional episodes of incapacity.” (ECF No. 62-4 at 2-3). The FMLA Policy also allows employees to request leave on an “intermittent” basis, i.e., “in blocks of time, or by reducing the normal weekly or daily work schedule.” (Id. at 4). “Employees who need leave intermittently or on a reduced leave schedule for planned medical treatment must make a reasonable effort to schedule the treatment so as not to disrupt unduly MSK's operations.” (Id.) The FMLA Policy allows employees to substitute their paid leave for FMLA-approved leave, provided the employee has exhausted their accrued sick leave. (Id. at 5). Mr. Bryan was familiar with MSK's FMLA Policy. (ECF No. 59 ¶ 39).

2. Mr. Bryan's employment at MSK

On May 8, 1989, Mr. Bryan began working for MSK as an instrument technician in MSK's Central Processing Department (“CPD”). (ECF Nos. 59 ¶ 21; 61-1 at 3-4). The CPD “is responsible for decontaminating sterilizing, packaging, and distributing reusable hospital surgical instrumentation and equipment in accordance with various hospital and department guidelines.” (ECF No. 59...