Lewis v. Blackman Plumbing Supply L. L.C.

51 F.Supp.3d 289

Gene D. LEWIS, Plaintiff

v.BLACKMAN PLUMBING SUPPLY L.L.C.; Orange County Plumbing Group, L.L.C.; Ridgewood Corp.; and Jules M. Weinstein, Defendants.

Case No. 11–CV–7046 KMK.

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

Signed Sept. 29, 2014.

Nathaniel K. Charny, Esq., Thomas Edward Feeney, Esq., Charny and Associates, Rhinebeck, NY, for Plaintiff.

Douglas Evan Rowe, Esq., Sanjay V. Nair, Esq., Certilman, Balin, Adler & Hyman, East Meadow, NY, for Defendants Blackman Plumbing Supply L.L.C. and Orange County Plumbing Group, L.L.C.

Kenneth L. Moskowitz, Esq., Brown Moskowitz & Kallen, P.C., Summit, N.J., for Defendants Orange County Plumbing Group, L.L.C., Ridgewood Corp., and Jules M. Weinstein.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Gene Lewis filed the instant Complaint against Defendants Blackman Plumbing Supply L.L.C.; Orange County Plumbing Group, L.L.C.; Ridgewood Corp.; and Jules M. Weinstein, alleging multiple counts under federal and state law arising out of Plaintiff's employment relationship with Defendants. Before the Court is Defendants Blackman Plumbing Supply L.L.C. and Orange County Plumbing Group, L.L.C.'s (“Defendants”) Motion for Summary Judgment. For the following reasons, the Court grants Defendants' Motion in part and denies it in part.

I. Background

A. Factual History

Plaintiff, currently in his sixties, was diagnosed with bone deterioration in his hip in May 2006. (See Def. Blackman Plumbing's Statement of Material Facts (“Defs.' 56.1 Statement”) ¶ 14 (Dkt. No. 48).) At that time, he worked for Defendant Ridgewood Corp. (“Ridgewood”)—a commercial provider of plumbing supplies—where he was an assistant manager at Ridgewood's Middletown, NY branch. (See id. ¶ 7.) After receiving his diagnosis, Plaintiff informed the Middletown branch manager, Richard Robinson (“Robinson”), that he “suffered from a disability” and that he “would eventually need to have [his] hip replaced.” (See Pl.'s Local Rule 56.1 Statement (“Pl.'s 56.1 Statement”) ¶ 16 (Dkt. No. 63).) He also submitted to Robinson a doctor's note confirming this information, and he told Robinson at that time that “he was having difficulty lifting things.” (Id.; see also Aff. of Gene Lewis (“Pl.'s Aff.”) Ex. 1 (Dkt. No. 61) (doctor's note describing Plaintiff's diagnosis, dated May 22, 2006).) Robinson responded that “he would ‘put [the doctor's note] on file.’ ” (See Pl.'s 56.1 Statement ¶ 16.)

“Almost immediately” after informing Robinson of his diagnosis, “Robinson's treatment of Plaintiff changed for the worse.” (Id. ) Specifically, Robinson began “watch[ing] Plaintiff's movements more vigilantly”; “call[ing] upon Plaintiff with even more frequency to do the order picking from the warehouse, especially when it involved very heavy objects”; “requiring Plaintiff to pick orders without regard to the weight limitations”; and “not allowing Plaintiff to use the picker when picking orders in the warehouse,” but instead “requir [ing] [Plaintiff] to use a hand truck.” (Id. ¶ 12.)¹ Robinson also began to make negative comments toward Plaintiff, many times in front of customers, telling Plaintiff that he was “slow,” calling him a “gimp,” and generally “communicat[ing] frustration ... related to Plaintiff and his hip problems.” (Id. ) Robinson also “repeatedly threatened” that he would fire Plaintiff if Plaintiff “was ever deemed less than ‘100%.’ ” (Id. ) In response, Plaintiff, fearful of losing his job, “did the best [he] could do to accomplish the tasks assigned to [him] and [he] tried to complain as little as possible,” even though it was “painful” for him to do so and it possibly “made [his] condition worse.” (Pl.'s Aff. ¶ 14.)

Experiencing “increasing pain and discomfort,” and suffering from Robinson's “increasing” “mistreatment,” Plaintiff saw an orthopedic surgeon in March 2008. (See id. ¶ 15.) Thereafter, that doctor issued a “disability certificate,” which placed a number of “restrictions” on Plaintiff's physical activity, including that he should “no[t] lift [ ] [anything] over 25 [pounds],” and that he should not engage in “prolonged standing or walking or climbing[.]” (Pl.'s Aff. Ex. 2, at unnumbered 2 (disability certificate, dated March 18, 2008).) The certificate was “faxed directly to Robinson.” (Pl.'s Aff. ¶ 15.) Subsequently, Robinson appeared to be “extremely aggravated by the whole subject” of Plaintiff's disability, and he told Plaintiff “unequivocally ... that [Ridgewood] does not allow workers who are not 100% and that if [Plaintiff] ever present[ed] as less than 100% physically able[,] or if [Plaintiff] [went] out on medical leave because of [his] disability[,] [he] better be 100% upon [his] return or [he] would lose [his] job.” (Id. ¶ 16.) Robinson also continued his general mistreatment of Plaintiff, acting “dismissive” of Plaintiff's disability, “yelling at [Plaintiff], calling [him] names[,] and insisting that [Plaintiff] continue to do the heavy lifting work.” (Id. ¶¶ 17–18; see also id. ¶¶ 19–20 (alleging that Robinson continued to threaten to fire Plaintiff and that he continued to deny Plaintiff's requests to use the picker).)

In the fall of 2009, Plaintiff was transferred from the Middletown branch to a branch located in Newburgh, NY. (See id. ¶ 21.) With Robinson remaining at the Middletown branch, Plaintiff was relieved that he “was no longer subject to Robinson's unrelenting ridicule and criticism[.]” (Id. ¶ 22.) Moreover, although Plaintiff “was still called upon to perform tasks that required [him] to lift in excess of 25 pounds[,]” Plaintiff alleges that this happened “far less often” than at the Middletown branch, and that the Newburgh branch management made “at least some efforts ... to provide the ... accommodations” that his doctor had previously ordered. (Id. ) Specifically, Plaintiff “received help” with lifting tasks “each and every time he asked for [it],” and “when he could not do the task,” the Newburgh branch management “understood, showed compassion[,] and assigned the task to someone else.” (Pl.'s 56.1 Statement ¶ 30.)

In 2010, Ridgewood filed for bankruptcy protection. (See Defs.' 56.1 Statement ¶ 96.) Thereafter, a bankruptcy court issued an order allowing Ridgewood “to sell substantially all of its assets to Sovereign Bank, a secured party with loans” on which Ridgewood had defaulted. (Aff. of Diane C. Nardone in Supp. of Partial Summ. J. (“Nardone Aff.”) ¶ 4 (Dkt. No. 51); see also Nardone Aff. Ex. K (bankruptcy court order, dated July 16, 2010).) As part of the bankruptcy reorganization, Defendant Blackman Plumbing Supply, L.L.C. (“Blackman”), acting through two of its wholly owned subsidiaries (Defendant Orange County Plumbing Group, L.L.C. (“OCPG”) and non-party New Jersey Plumbing Group, L.L.C. (“NJPG”)), purchased many of Ridgewood's assets—such as facilities leases and customer data—from Sovereign Bank. (See Nardone Aff. ¶ 5; Defs.' 56.1 Statement ¶ 97; see also Nardone Aff. Ex. L (“Secured Party Sale and Disposition Agreement,” entered into between OCPG, Sovereign Bank, and Ridgewood); Nardone Aff. Ex. M (“Bill of Sale,” entered into between NJPG, Sovereign Bank, and Ridgewood).)

Blackman thereafter “took over operation of the [Ridgewood] stores,” including the Newburgh branch. (Pl.'s Aff. ¶ 23; see also Pl.'s 56.1 Statement ¶¶ 152–53 (alleging that “[t]here was no interruption in the operation of the business as it changed ownership to Defendants,” and that “Defendants held themselves out as the successor to Ridgewood Corp.”).) Plaintiff remained employed at that branch, with “no break in service” resulting from the takeover. (See Pl.'s Aff. ¶ 45 (“In July 2010 I had no break in service as it relates to my employment in the Newburgh Branch. On July 18, 2010 I was employed by Ridgewood Corp. and the next day I was employed by [Blackman].”).) Blackman did, however, replace the Newburgh branch manager with Scott Brown (“Brown”), who gave Plaintiff “very good ratings” and recommended that Plaintiff receive a pay raise in a December 2010 performance evaluation. (Id. ¶¶ 23, 25.)²

In April 2011, Blackman told Plaintiff that it was closing the Newburgh branch and that it would transfer Plaintiff back to the Middletown branch, where Robinson remained the manager. (See id. ¶ 26.) “Terrif[ied]” about the prospect of working under Robinson's supervision, and cognizant that his disability was “worsening[,]” (id. ¶ 27), Plaintiff called Fenton Harpster (“Harpster”), Blackman's Regional Sales Manager of the Southern Division, (see Defs.' 56.1 Statement ¶ 42), approximately “two weeks before [he] was supposed to start at Middletown[,]” (Pl.'s Aff. ¶ 28). Plaintiff told Harpster that he “was disabled because of [his] hip problems” and that he “was worried about being back under Robinson's supervision” given Plaintiff's previous experience with Robinson. (Id. ) Harpster responded that “the transfer was still going to happen,” that Plaintiff “should address [his] concerns directly to Robinson,” and that Harpster “would not get involved until after [Plaintiff] had tried [a] direct approach with Robinson.” (Id. ¶ 29.) Plaintiff, still “very worried about keeping [his] job[,]” “let the conversation with Harpster end at that point and prepared [himself] to suffer through Robinson's supervision.” (Id. ¶ 30.)

Subsequent to Plaintiff's transfer, “Robinson's abusive behavior picked up where it left off.” (Id. ¶ 32.) Although Plaintiff “cannot recall” a time when Robinson “called [him] the nickname ‘gimp’ ” after Plaintiff returned to the Middletown branch as a Blackman employee, he alleges that Robinson “did ... all of the other things he had done to [Plaintiff] when [Plaintiff] was previously under his supervision” as a Ridgewood employee, “including assigning [Plaintiff] tasks that required lifting in excess of 25 pounds, demanding that [Plaintiff] proceed to the warehouse and pick [up] orders even though there were [non-disabled] people ... [available] to do that work[,] and...