In Palmer v New York City Dept. of Health & Hygiene, 2016 NY Slip Op 30037(U) (Sup. Ct. N.Y. Cty. Jan. 5, 2016), the court granted defendant’s motion for summary judgment dismissing plaintiff’s complaint alleging disability discrimination.
A prima facie case of discrimination requires a showing by plaintiff that:  she is a member of a protected class;  she was qualified to hold the position;  she was terminated from employment or suffered another adverse employment action; and  the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. Only if these elements are satisfied will there be a rebuttable presumption of discrimination which the employer can then rebut by proving a legitimate, independent, non-discrimina-tory reason for the adverse employment action If the employer is successful, the burden then shifts back to plaintiff who has to prove that the reason being offered is a pretext, and therefore false.
Applying the law, the court held:
Here, assuming arguendo that plaintiff has demonstrated a prima facie case of discrimination, defendant has established a legitimate business reason for her termination. Plaintiffs time sheets show that she took numerous days off during the approximate six months that she worked for defendant. Plaintiffs supervisors complained that she was not “grasping the material” and that her job performance was suffering due to the numerous days she missed work. Therefore, defendant has rebutted plaintiffs claims by establishing that it properly terminated plaintiff, a probationary civil employee, based on her absenteeism.
In turn, plaintiff has failed to raise a triable issue of fact as to whether the proffered reason was pretextual. Indeed, the two month time period that plaintiff did not report to work before she was ultimately terminated was not even due to her fibroids and/or endometriosis. While plaintiff states that she had and/or submitted medical documentation to support her two month leave due to back pain, she has not provided such documentation to the court. Even if she had, plaintiff is wholly unable to show that her termination was not due to her absenteeism, but rather, because of disability discrimination based upon fibroids and/or endometriosis. Even crediting plaintiffs claim that Ms. Brown said to her at the June 18, 2012 meeting that she would miss a significant amount of work if she had a hysterectomy, there is no dispute that plaintiff never had a hysterectomy. Otherwise, plaintiffs claims are insufficient to raise a triable issue of fact because a reasonable fact-finder could not conclude on this record that plaintiffs termination was the result of disability discrimination. (Emphasis added.)