In Sefovic v. Memorial Sloan Kettering Cancer Center, 2017 WL 3668845 (S.D.N.Y. Aug. 23, 2017), the court granted defendants’ motion for summary judgment and dismissed plaintiff’s claims under, inter alia, the Americans with Disabilities Act (ADA).
In sum, defendant terminated plaintiff after he failed to return to work following medical leave. Specifically: “The undisputed facts establish that Sefovic was absent from work for an extended period of time without authorization; he failed to comply with a request to return to work; and he was continuously unable to work after September 2014.” These undisputed facts, held the court, rendered plaintiff’s termination “appropriate.”
The court summarized the relevant law:
The ADA prohibits “discriminat[ion] against a qualified individual on the basis of disability in regard to … terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A plaintiff can establish a prima facie case of discrimination under the ADA by showing “(1) the employer is subject to the ADA; (2) the plaintiff is disabled within the meaning of the ADA or perceived to be so by her employer; (3) she was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; (4) she suffered an adverse employment action; and (5) the adverse action was imposed because of her disability.” Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015). “Under the last element, a plaintiff must show that the adverse employment action took place under circumstances giving rise to an inference of discrimination.” Id. (internal quotation marks omitted).
Further, “[d]iscrimination in violation of the ADA includes … ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.’ ” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (quoting 42 U.S.C. § 12112(b)(5)(A)). Thus, a plaintiff can “make[ ] out a prima facie case of disability discrimination arising from a failure to accommodate by showing each of the following: (1) [p]laintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.”
Applying the law, the court held:
Defendants argue that they are entitled to summary judgment because Sefovic cannot show that he was qualified to perform the essential functions of his job and that he was terminated because of his disability. They also argue that there was a legitimate, non-discriminatory reason for his termination, which Sefovic cannot show was merely pretextual. The Court agrees that summary judgment is appropriate because Sefovic presents no evidence that he was qualified to perform the essential functions of his job (indeed all the evidence is to the contrary), as of October 2014, when he was terminated. The Court therefore need not address Defendants’ other arguments.
Sefovic testified in his deposition that since he called out of work on October 21, 2014, he has been unable to work. Sefovic Dep. 181, 206. Sefovic’s admission that he cannot work “prevent[s] [him] from performing the essential functions of [his] job, and thereby preclude[s] [him] from establishing a prima facie case of disability discrimination under the ADA.” Sesay-Harrell v. NYC Dep’t of Homeless Servs., 12 Civ. 925 (KPF), 2013 WL 6244158, at *17 (S.D.N.Y. Dec. 2, 2013) (collecting cases).
Sefovic attempts to avoid this conclusion by arguing that Defendants failed to offer him a reasonable accommodation. See Opp. at 11–12. But Sefovic admits that he never requested any accommodation. See Sefovic Dep. 184. Nevertheless, “an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). “[I]f the employer knew or reasonably should have known that the employee was disabled,” the employer must “engage in an interactive process with [its] employees and in that way work together to assess whether an employee’s disability can be reasonably accommodated.” Id. 135–36 (internal quotation marks and alteration omitted). Failure to engage in an interactive process, however, does not give rise to a valid independent claim under the ADA. Sheng v. M&TBank Corp., 848 F.3d 78, 87 (2d Cir. 2017). There must also be “evidence that accommodation was possible.” See id. at 86. The plaintiff must “show that a reasonable accommodation existed at the time of his dismissal.” Stevens v. Rite Aid Corp., 851 F.3d 224, 231 (2d Cir. 2017). “The burden of persuasion on the ‘existence’ of an ‘effective accommodation’ is not satisfied by mere speculation.” Jackan v. N.Y. State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000).
*5 Sefovic’s current claim that “[i]t is conceivable that [he] could do his work with some accommodations like less hours and/or moving him to a day shift,” Opp. at 11, is “mere speculation,” Jackan, 205 F.3d at 566. Further, it is contradicted by facts and Sefovic’s own testimony. At his deposition, Sefovic stated that he “couldn’t return to work because of [his] injuries … [a]t any point.” Sefovic Dep. 206. When asked whether there was “anything that the Center or the other defendants could have done to allow [him] to perform [his] job,” Sefovic answered “[n]o, not really.” Id. at 210. And in his declaration in opposition to Defendants’ summary judgment motion, Sefovic stated that he “had at least two Independent Medical Examinations that concluded that [he] had a total disability.” Sefovic Decl. ¶ 4.
Sefovic also attempts to rely on a December 17, 2014 independent medical examination that he argues concluded he was “capable of doing a light work in December of 2014.” Opp. at 11 (citing Sipsas Decl. Ex. D, Dkt. 79-6). But that fails to show that Sefovic was able to work “at the time of his dismissal.” Stevens, 851 F.3d at 231. Sefovic presents no evidence showing that he was “qualified to perform the essential functions of the job with or without reasonable accommodation,” Davis, 804 F.3d at 235, or that a reasonable accommodation existed, see Stevens, 851 F.3d at 231. Summary judgment is therefore appropriate.