In Frantz v. XL Diamonds LLC, No. 151672/2022, 2025 WL 1994469, 2025 N.Y. Slip Op. 32697(U) (N.Y. Sup Ct, New York County July 16, 2025), the court granted defendants’ motion for summary judgment on plaintiff’s disability discrimination claims under the New York State and City Human Rights Laws.
From the decision:
Both Executive Law § 296(1)(a) and Administrative Code 8–107(1)(a) provide that it is an unlawful discriminatory practice for an employer to, as pertinent here, discharge an employee because of a disability. To establish a prima facie case of employment discrimination under these statutes,1 plaintiff must prove that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action or was, at least, treated differently based on his membership in this protected class; and (4) this adverse action or different treatment occurred under circumstances giving rise to an inference of discrimination (see Pastor v August Aichhorn Ctr. for Adolescent Residential Care, Inc., 238 AD3d 645, 645 [1st Dept 2025]). Once plaintiff has established that these requirements are satisfied, the burden shifts to defendants to rebut the presumption of discrimination by establishing a legitimate, independent, non-discriminatory reason for the adverse or different treatment (see Hamburg v New York Univ. School of Medicine, 155 AD3d 66, 73 [1st Dept 2017]). If defendants are successful in doing so, the burden shifts back to plaintiff to prove either that the non-discriminatory reason offered by defendants is entirely pretextual or that the defendants were also motivated by discriminatory animus in addition to their non-discriminatory reason for the adverse or different treatment (id.).
Plaintiff fails to establish that he is a member of a protected class or that he was terminated under circumstances giving rise to an inference of discrimination. On this first point, plaintiff’s relatively brief illness is not a disability under either the NYSHRL or NYCHRL. The term “disability” is defined under the NYSHRL as “a physical, mental or medical impairment … which prevents the exercise of a normal bodily function… [and] which, upon the provision of reasonable **5 accommodations, do[es] not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held” (Executive Law § 292[21]). The NYCHRL, in turn, defines “disability” as “any physical, medical, mental or psychological impairment, or a history or record of such impairment” (Administrative Code § 8–102[16][a]). However, “under the NYSHRL … temporary conditions do not qualify as a disability under the discrimination laws” and “[e]ven under the most liberal and broad construction of the NYCHRL” a single, temporary illness of less than two weeks “with no subsequent long-lasting or permanent physical disability,” such as the one at issue, here does not qualify as a disability2 (Dillon v Silverman, 2014 NY Slip Op 30934[U] [Sup Ct, NY County 2014] [internal citations omitted]; see also Phillips v City of New York, 66 AD3d 170, 198 [1st Dept 2009] [“temporary conditions do not constitute disabilities under the ADA and other statutes”]).
Plaintiff has also failed to establish that his termination occurred under circumstances permitting an inference of discrimination. In general, “[d]iscriminatory motivation may be inferred from, among other things, invidious comments about others in the employee’s protected group, or the more favorable treatment of employees not in the protected group” (Rodriguez v New York City Hous. Auth., 225 AD3d 458, 459 [1st Dept 2024] [internal citations and quotations omitted]), neither of which are at issue here. To the contrary, the uncontradicted affidavit of Debra L. **6 Fletcher, XL Diamonds’s head of Human Resources, establishes that all other XL Diamonds employees who contracted COVID-19 had gone on sick leave and returned without being fired and that there was no “company policy of firing employees who were sick or had become ill for any reason including being infected with COVID” (NYSCEF Doc No. 23, Fletcher aff at ¶¶ 5-6).
Finally, even assuming that plaintiff has established his prima facie case, defendants have proffered a legitimate non-discriminatory reason for firing plaintiff, i.e., that instead of waiting for a negative COVID-19 test result so he could return to work, he went on a vacation during the work week without first discussing it with his employer (see Dedewo v CBS Corp., 18 CIV. 9132 (AKH), 2022 WL 1031588, at *7 [SDNY Apr. 5, 2022] [defendant’s motion for summary judgment dismissing action for, inter alia, discriminatory discharge, granted where evidence established that plaintiff was fired because she “took an unauthorized vacation when told she was needed at her job, and was willfully late in returning to her job”]). “In the face of this evidence, plaintiff [has] failed to come forward with any evidence raising an issue of fact as to whether these reasons were mere pretext for discrimination (under the State HRL) or whether discrimination was one of the motivating factors for the demotion (under the City HRL)” (Kwong v City of New York, 204 AD3d 442, 444 [1st Dept 2022] [internal citations omitted]).
Based on this, the court held that defendants established their entitlement to summary judgment dismissing this action: