Tse v. N.Y. Univ.

DORIS TSE, Plaintiff, v. NEW YORK UNIVERSITY, Defendant.

10 Civ. 7207 (DAB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: September 19, 2013

OPINION

DEBORAH A. BATTS, United States District Judge.

Plaintiff Doris Tse ("Plaintiff" or "Tse") brings this action against New York University ("Defendant" or "NYU"), alleging violations of the Americans with Disability Act ("ADA"), 42 U.S.C. § 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL"). Plaintiff maintains that NYU discriminated against her on the basis of her disability, subjected her to a hostile work environment, and impermissibly retaliated against her. Defendants now move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for Summary Judgment.

For the reasons below, Defendant's Motion for Summary Judgment ("Motion") is GRANTED in part and DENIED in part.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.

A. Tse's Departmental Positions at NYU and the Structure of Those Departments

Tse worked at NYU from 1994 to April 4, 2011, initially working in the Department of Pathology before being transferred to the Department of Medicine in 2000. (Def. 56.1 Stmt. ¶ 1; Pl. 56.1 Stmt. ¶ 1.) At both Departments, she was a non-tenure track research professor. (Def. 56.1 Stmt. ¶ 1; Pl. 56.1 Stmt. ¶ 1.)

Dr. Fred Valentine ("Valentine"), who was the Director of the Flow Cytometry Core ("Core") within NYU's Center for AIDS Research ("CFAR" or "Center"), hired Tse in 1994. (Def. 56.1 Stmt. ¶ 4.) The Core provided flow cytometry services for AIDS investigators. (Id. ¶ 7.) After NYU promoted Valentine as Director of CFAR, he appointed Tse to replace him as the Core's Director in 1999. (Id. ¶ 10.) In January 2006, Tse was promoted to Associate Professor of Medicine as a research professor, but she continued to serve as the Core's Director. (Id. ¶ 23.)

Until 2007, Tse reported to Dr. Joel Ernst ("Ernst"), the Director of the Department of Medicine's Infectious Diseases and Immunology Division; after 2007, she reported to Valentine. (Id. ¶ 21.) Both Valentine and Ernst reported to Dr. Martin Blaser ("Blaser"), the Chair of the Department of Medicine. (Id. ¶ 20-21; Pl. 56.1 Stmt. ¶ 19-21.) Valentine, Blaser, and Dr. Vivian Lee ("Lee"), who was NYU Langone Medical Center's VicePresident and the School of Medicine's Vice Dean for Science, took part in certain hiring and firing decisions.

The CFAR relies upon the National Institute of Health ("NIH") to fund the Center and the Core. (Def. 56.1 Stmt. ¶ 5.) NIH funding is obtained by submitting grant applications. (Id. ¶ 6.) These grant applications are made by the institutions, with individuals acting as the principal investigators; Tse was the principal investigator for the Core. (Id. ¶ 60.)

B. Tse's Health and Service as the Core's Director

As the Core's Director, Tse oversaw the provision of flow cytometry services, managed and hired employees, and operated the Core within its annual budget, among other duties. (Def. 56.1 Stmt. ¶ 13; Pl. 56.1 Stmt. ¶ 13.) To provide those flow cytometry services, the Aria and Aria II machines were used, with the Aria being installed in 2007 and the Aria II in 2009. (Def. 56.1 Stmt. ¶¶ 15-17.) In addition to Tse, the Core's staff included a lab manager, undergraduate students, and postdoctoral fellows. (Id. ¶ 29; Pl. 56.1 Stmt. ¶ 29.)

In 1997 Plaintiff developed severe acute arthritis, and in 1999 she was diagnosed with Lupus. (Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Stmt. ¶ 8; Tse Dep. at 16.) Valentine became aware of her medical conditions sometime thereafter. (Tse Dep. at 17-19;Valentine Dep. at 48-50.) After Valentine and Tse discussed that her conditions required someone to assist with the Aria machines, Valentine hired people to help. (Valentine Dep. at 50-51.) Tse's staff operated the Aria and Aria II, with her spending no more than an hour a week using the machinery because, by 2007, she lost the fine manual dexterity necessary to operate them. (Def. 56.1 Stmt. ¶ 18; Pl. 56.1 Stmt. ¶ 18.) Until her removal as Core Director, all of the accommodations requested and given to Tse were for her role as Director of the Core.

C. Tse's Allegations that She Was Deprived Accommodations While Serving as the Core's Director

It was not until 2009 that Tse alleges that NYU began to deprive her of accommodations as Core Director by eliminating her laboratory assistants. When Valentine and others at NYU were creating a budget to incorporate into the 2009 NIH grant proposal, Tse took issue with how much money would be allocated to her laboratory assistants. (Cerasia Decl. Ex. B; Risman Decl. Ex. S.) Valentine wanted to hire Michael Gregory ("Gregory"), who previously had worked at the Core and had more experience than typical postdoctoral fellows, to serve as a full-time operator of the machines. (Def. 56.1 Stmt. ¶ 36.) Tse, however, wanted to continue with the status quo of having postdoctoral fellows asher disability accommodation. (Pl. 56.1 Stmt. ¶ 53.)

On June 2, 2009, she emailed Valentine about her concerns about the Core's budget's provision of laboratory assistants; she wrote that if the Department "of Medicine administrators [cannot] incorporate my proposed budget, then you need to appoint another Director." (Cerasia Decl. Ex. B.) Tse also complained to Lee regarding the budget. On June 3, 2009, Lee responded, explaining

[budgetary] issues you are raising are not considered grievable under [the] faculty handbook . . . . [and Valentine] is the PI and so, ultimately, it is his responsibility that the services are run satisfactorily. If you and he disagree about how the core should be run then you need to reach a resolution between yourselves . . . . If you cannot, then it will be [Valentine's] decision as to whether to accept your requirement or to identify a new Core Director.

(Risman Decl. Ex. S, at 2.) On June 5, 2009, Valentine and Lee discussed, via email, appointing a new Director or co-Directors. (Cerasia Decl. Ex. B.) In that same email, when discussing how the changes at the Core would implicate the budget, Valentine wrote, "The CFAR certainly cannot afford to hire a manager [in addition to Tse] from our current budgets. If the school cannot help then we will bumble along with Doris until she finds some other reason to quit. That would free up about $70,000." (Risman Decl. Ex. S, at 3.)

Ultimately, Gregory was hired. He had a higher salary than the lower-compensated postdoctoral fellows who served aslaboratory assistants. (Def. 56.1 Stmt. ¶ 103.) Tse contested this hiring decision because she thought the postdoctoral fellows should continue as her accommodation, as opposed to Gregory--whom Defendant felt sufficiently met her needs. (Id. ¶ 105; Pl. 56.1 Stmt. ¶ 103.) In June 2009, as a compromise, Lee and Valentine also included two postdoctoral fellows in the budget through June 2010. (Def. 56.1 Stmt. ¶ 104.)

Plaintiff submitted an accommodation request at the end of 2009, persisting in seeking postdoctoral students instead of a fulltime lab technician at the CFAR. On December 16, 2009, Reginald Odom ("Odom"), NYU's Vice President for Employee and Labor Relations, wrote an email to Tse: "I have been informed that you would like to request an accommodation . . . . Please contact my office . . . so that we can set up a meeting to discuss the details of your accommodation request." (Risman Decl. Ex. R, at 1.) They met several times, and Plaintiff had her rheumatologist submit a letter, which supported her request to reinstate postdoctoral fellows in connection with her Director role. (Id. at 2.)

After one of the two postdoctoral fellows left the Core, Tse requested the appointment of a new fellow on February 2, 2010. (Pl. 56.1 Stmt. ¶ 105.) Valentine approved that request on February 4, 2010——the same day that he submitted, to various NYUdirectors and administrators, two potential letters notifying Tse that she would be removed as the Core's Director. (Id. ¶ 104.) On March 9, 2010, Valentine retracted the approval after discovering there were insufficient funds to approve the appointment of a postdoctoral fellow. (Risman Decl. Ex. R, at 8.)

D. Events Leading to Her Removal as the Core's Director and Allegations of Discrimination

Prior to September 2008, there is no indication that Valentine or anyone at NYU expressed concern with Tse's management of the Core and the Core's services. (Def. 56.1 Stmt. ¶ 45; Pl. 56.1 Stmt. ¶ 45.) On September 24, 2008, Valentine emailed Tse, writing, "My major concern is how your efforts on this grant will effect the operating of the CFAR Core since even without this additional work the Core is not providing services up to its potential." (Risman Decl. Ex. N, at 5.) The next day, he explained, "[M]y concern is only that your major responsibility is running the CFAR Core . . . . [F]or whatever reasons, the core is currently not able to offer all of the services to the many investigators whose needs supported the application for the Aria. . . . Do you feel that you currently have an optimally functioning user-friendly Core?" (Id. at 7.) When Tse requested clarification, he responded, "You regularlystate that you are too busy to do this or that, and during the past few months we have been dependent on the working schedules of students, the regular retraining of new technicians to replace those who have gone on to school." (Id. at 9.)

On November 14, 2008, Valentine informed Tse of his concerns with the reliability of the Core's data production. (Id. at 11.) He expressed his unease about delays and timing of the data production and about her coordinating repairs in December 2008 and January 2009, respectively. (Id. at 13-16.) On February 5, 2009, Valentine wrote, "As a separate subject, which we have discussed many times, it is totally inappropriate for a service core to have its ability to run samples dependent...