
    Susan GUINUP, Plaintiff, v. PETR-ALL PETROLEUM CORPORATION, doing business as Express Mart, and Petr-All Petroleum Consulting Corporation, Defendants.
    No. 5:08-CV-1110 (FJS/GHL).
    United States District Court, N.D. New York.
    March 31, 2011.
    
      Blau, Brown & Leonard, LLC, Steven Bennett Blau, Esq., Shelly A. Leonard, Esq., of Counsel, New York, NY, for Plaintiff.
    Hinman, Howard & Kattell, LLP, Leslie Prechtl Guy, Esq., of Counsel, Binghamton, NY, for Defendants.
   MEMORANDUM-DECISION AND ORDER

SCULLIN, Senior District Judge.

I. INTRODUCTION

On October 15, 2008, Plaintiff brought this action pursuant to the Americans with Disabilities Act (“ADA”) and the New York State Human Rights Law (“NYHRL”). Specifically, Plaintiff alleged discrimination and retaliation in violation of the ADA and the NYHRL.

Currently before the Court is Defendant’s motion for summary judgment.

II. BACKGROUND

Defendant Petr-All is a New York corporation that operates Defendant Express Mart gas stations and convenience stores throughout Central New York. Defendant first employed Plaintiff in June 2000 as a store manager for Defendant’s Store # 360. While employed, Plaintiff reported directly to the area supervisor for the geographic area in which the store was located, Area 6. When Plaintiff began, the Area 6 supervisor was Kevin Connelly. Later George Tartick and then Steve Nucci were Area 6 supervisors. The area supervisors, in turn, reported to the Director of Marketing. For most of Plaintiffs tenure, the Director of Marketing was Kevin Quinton. At the time of Plaintiffs termination, the Director of Marketing was Chris Sweeney.

When she was hired, Plaintiff was provided an Employee Hire Package. The Package included Defendant’s Policies Regarding Security and Personal Conduct, which, among other things, stated that “anyone that commits violations of these rules may be subjected to termination of employment ...” and that one such rule was the “[rjefusal to comply with the instructions of management.” Plaintiff signed a document acknowledging that she had received and reviewed these policies.

Plaintiff also received a job description. As a store manager, Plaintiff was responsible for scheduling employees, covering missed shifts, making coffee, sweeping, stocking coolers, waiting on customers, making pizzas, and entering paperwork. She was also responsible for hiring employees and conducting employee reviews. Plaintiff typically worked six days a week. In 2006, Plaintiff received a handbook from Defendant Petr-All. The handbook contains, among other things, a policy regarding job descriptions and reasonable accommodations.

Plaintiff’s employment with Defendant Petr-All was unremarkable until November 2006. At that time, Plaintiff, while intoxicated, made phone calls to both Chris Sweeney and Kevin Quinton, then Director of Marketing. See Deposition Transcript of Steven Nucci dated August 18, 2009 (“Nucci Tr.”), at 175; Deposition Transcript of Susan Guinup dated May 27, 2009 (“Guinup Tr.”), at 66-69, 77; Deposition Transcript of Christopher Sweeney dated December 22, 2009 (“Sweeney Tr.”), at 54. The phone calls contained several “F-bombs” and other inappropriate language. See Sweeney Tr. at 54. Mr. Nucci, who was Plaintiffs supervisor at the time, investigated the incident and considered terminating Plaintiff. However, he felt that the fact that Plaintiff had been under the influence of alcohol at the time and Plaintiffs later remorse mitigated against termination. See Nucci Tr. at 182. Consequently, Mr. Nucci decided to give Plaintiff a final written warning and a one-week suspension. The final written warning indicated that Plaintiff had violated “Rule # 5” and stated that, “[i]f Sue violates this rule or any other policy, she will be dismissed and terminated from our employment.” See Guinup Tr. at 79; Affidavit of Leslie Prechtl Guy sworn to March 1, 2010 (“Guy Aff.”), at Exhibit “E.”

In March 2007, Plaintiff injured her shoulder, and her physician placed her on light duty. Defendant accommodated Plaintiffs need for light duty for three weeks.

For the six years prior to April 2007, Mr. Nucci consistently graded Plaintiff as meeting or exceeding all of management’s job performance criteria and expectations. See Nucci Tr. at 194-95; Guinup Tr. at 64-65. Comparative sales at Plaintiffs store ranked in the upper half; store inspections, inventory/cash controls, and payroll budget compliance consistently met or exceeded expectations. See Nucci Tr. at 195. As a result, in seven years, Plaintiff only missed receiving a quarterly Manager’s Incentive Bonus, based on multiple factors, including productivity, sales, growth, profits, and expenses, two to four out of twenty-eight times. See Nucci Tr. at 102; Declaration of Susan Guinup dated April 26, 2010 (“Guinup Decl.”), at ¶ 5.

As part of her job duties, Plaintiff was required to create a weekly work schedule for her employees. To do this, Plaintiff was required to use the authorized payroll budget that told managers how many hours they were allowed to use for payroll each week. In creating the payroll budget, the area supervisor would submit a proposed payroll budget which, if necessary, the Director of Marketing would review. The payroll budget changed as needed in order to make certain that payroll was consistent with the store’s need. Factors considered in creating the payroll budget for a particular store included the store’s sales, the delivery schedule for products, and coverage issues.

In April 2007, Mr. Nucci reduced the payroll budget for Plaintiffs store by thirteen hours from 353 to 340 hours per week. Mr. Nucci testified that he did this in part because rising fuel costs were reducing store profit margins and because Plaintiffs store’s sales had decreased. See Nucci Tr. at 137, 144. Mr. Nucci also reduced payroll budgets for other stores within his area. See id. at 137. The net result of this reduction was that, in her capacity as store manager, Plaintiff would be working a minimum of sixty to sixty-five hours per week because she was required to work all store hours not covered by the reduced budget. See Guinup Decl. at ¶ 8.

For the six years prior to April 2007, during which Plaintiff worked under Mr. Nucci’s direction and control, although the payroll budget was stated in terms of hours on a weekly basis, as long as the store manager’s total payroll budget for the quarter (13 weeks) was not exceeded, Mr. Nucci considered store managers, including Plaintiff, to be in budgetary compliance. See Nucci Tr. at 122. Mr. Nucci had discretion to modify Plaintiffs store’s payroll budget without further management approval and had, on occasion, increased the budget based on Plaintiffs recommendations and/or report of conditions at the store. See id. at 129, 133.

Plaintiff communicated her concerns to Mr. Nucci, both verbally and in writing, requesting clarification as to the reasons for this payroll budget reduction. See Nucci Tr. at 140; Guinup Tr. at 91. Plaintiff urged that the new payroll budget was too low because the store’s busy season was starting and business was brisk; she had lost two of her key night people from the previous year; when she was off-duty for medical treatment, it took more manpower to fill her duties; and, due to work related injuries she had sustained, she was supposed to be on light duty for a period of time. See Guinup Decl. at ¶ 9; Guinup Tr. at 123-24; Affirmation of Shelly A. Leonard dated April 26, 2010 (“Leonard Aff.”), at Exhibit “J”. In an email dated April 3, 2007, Plaintiff stated that

there is no way I can operate this store on 340 hours from [Ajpril through [Slept. [I] need approximately 370 hours per week. My body is already beat to heck from the physical work at this location and I’m supposed to be on light duty. [I] have always monitored my payroll here according to the sales and make adjustments for lower sales. [I] have 360 hours scheduled for this week, w/e 4/7/07 and will have 350 hours for the following week, and you will start to see that increase as the weather gets better and the camps open up. [0]ur store sells a lot of grocery items and putting away stock is a full time job when business picks up.
I do not know what you can do with [this] info, but I hope something.

See Leonard Aff. at Exhibit “C.” In response to Plaintiffs request, Mr. Nucci replied that he would try to get her hours slightly increased and that he had to get approval in order to increase the scheduled hours. See Guy Aff. at Exhibit “F.” Mr. Nucci never communicated in writing to Plaintiff the status of her request. See Nucci Dep. at 240. Mr. Nucci also warned Plaintiff after she made several requests for payroll budget increases that any manager who failed to abide by the new payroll budgets would be given “a written counseling.” See id. Mr. Nucci never communicated to Plaintiff that she would be terminated if she failed to follow the new payroll budget. See id. at 209. Plaintiff scheduled her store for more than 340 hours for each week after this directive was issued.

On May 29, 2007, Plaintiff consulted a physician who placed her on job restriction wherein she would be out of work for six to eight weeks because of, among other things, lupus. On the same day, Plaintiff communicated this information to Mr. Nucci and sent the physician’s note to Defendant’s Human Resources Department. Six days after she communicated this information to Defendant, on June 4, 2007, Defendant terminated her. Defendant did not provide a formal written reason for the termination. It was not until Plaintiff commenced this action that, during depositions, Defendant attributed Plaintiffs termination to her purported “insubordination.” See id. at 272.

III. DISCUSSION

A. Plaintiffs discrimination claim

Title I of the ADA prohibits an employer from discriminating against a qualified individual with a disability in the terms, conditions, and privileges of employment. See 42 U.S.C. § 12112(a). “A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case.” Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir.1998) (citation omitted).

In order to establish a prima facie case of discriminatory discharge, a plaintiff must show that: (1) her employer is subject to the ADA; (2) she suffers from a disability within the meaning of the ADA; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she was fired because of her disability.

Id. at 869-70 (citations omitted).

If a plaintiff is successful in making out a prima facie case, then the burden shifts to the defendant, “who must proffer a legitimate, non-discriminatory reason for its actions in order to rebut the presumption of unlawful discrimination.” Greenway v. Buffalo Hilton Hotel, 143 F.Sd 47, 52 (2d Cir.1998) (citation omitted). If the defendant meets its burden, the plaintiff must then show that the “proffered explanation is merely a pretext for its intentional discrimination.” Id. (citations omitted). At the summary judgment stage, a plaintiff “need only establish a prima facie case by producing evidence sufficient to support a reasonable inference of discrimination.” Kotlowski v. Eastman Kodak Co., 922 F.Supp. 790, 796 (W.D.N.Y.1996) (citation omitted).

1. Qualified individual with a disability

Defendant asserts that Plaintiffs ADA and NYHRL discriminatory termination claims fails because Plaintiff could not perform the essential functions of her job with or without an accommodation. See Dkt. No. 19-2 at 15. Defendant claims that Plaintiff has been on a no-work restriction since May 29, 2007, and that, in her Social Security Disability Benefits application, Plaintiff admitted that she could no longer meet the physical demands of her former job and included great detail regarding the specific functions she could no longer perform. See id. at 15-16.

Once a plaintiff demonstrates that she was disabled at the time of the adverse employment action and that the employer was subject to the ADA and on notice of her disability, a court must inquire whether the plaintiff has established that she is a “ ‘qualified individual with a disability[.]’” Simmons v. N.Y.C. Transit Auth., 340 Fed.Appx. 24, 26 (2d Cir.2009) (quotation omitted). As such, the plaintiff must make a sufficient showing that, with reasonable accommodation, she could perform the essential functions of the relevant job and that the employer failed to make the appropriate accommodations. See id. (quotation omitted). “The determination as to whether an individual is a ‘qualified individual with a disability’ must be made as of the time of the employment decision.” Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir.1998) (quotation omitted); Henzel v. Delaware Otsego Corp., 285 F.Supp.2d 271, 277 n. 8 (N.D.N.Y.2003) (citation omitted).

As discussed, Plaintiffs physician took her out of work on May 29, 2007. See Dkt. No. 19-12 at 4. Moreover, at her deposition, Plaintiff stated that she had not applied for any position similar to that of a store manager since the date of her termination because “I have work restrictions where I wouldn’t be able to do the physical demands of the — that job.” See Guinup Tr. at 33.

In June 2007, Plaintiff also applied for Social Security Disability benefits. In her application for benefits, Plaintiff stated that she could not “move or [do] hardly any of my job duties, even data entry was painful to do at times. Also [c]an’t ... be on my feet, lift, stock shelves, get change, run register, make coffee, wash dishes, stand in one spot for long, sit for more than 15 min., banking, filing, ATM.” See Dkt. No. 19-12 at 4. Additionally, Plaintiff attached Defendant’s job description to her Social Security Disability benefits application and indicated which of the job’s “Responsibilities” and “Requirements” she could no longer perform. See Dkt. No. 19-13 at 28-29. The following constitute Defendant’s responsibilities for its store managers, with Plaintiffs proclaimed limitations included in bold font:

Ensure that each customer receives outstanding service by providing a customer friendly environment which includes greeting and acknowledging every customer, maintaining company standards, solid product knowledge and all other components of customer service. Walking/moving quickly causes extreme back/leg pain, fatigue[ ] from Lupus makes me unable to be “friendly + observant.”
Analyze and measure business trends, develop and implement plans to maximize sales and meet or exceed goals and objectives.
Recruit, train and develop store personnel in all aspects of the business, direct and monitor training and development [f]or all store personnel. Continually evaluate and react to performance issues. Due to fatigue and inflamation in various joint[s], unable to properly train as it requires full alertness and ability to stand in one spot with trainee.
Ensure all employees are trained using the prescribed materials, tools and processes as well as encourage staff to develop additional skills. Due to fatigue and inflamation in various joint[s], unable to properly train as it requires full alertness and ability to stand in one spot with trainee.
Communicates with store staff regarding new item information, processes and other information related to the store. Practice and implement all safe and clean initiatives. Sweeping and mopping aggravates left shoulder, back, legs.
Complete daily and monthly paperwork and computer requirements in order to ensure compliance with company standards and protection of its assets. Inflamation in wrists/elbows makes me have pain so severe I can’t use the keyboard.
Responsible for appearance, sanitation, credit card and check cashing procedures, night checks, promotions, etc. Cannot climb on ladder to put up sales signs due to knee pain.
Hi H< % ^ H* ‡
Stay abreast of competitive marketing conditions/trends and advise supervisor through oral and written reports, i.e. competitor surveys and competitor benchmarking to ensure achievement of Petr-All marketing policies. Inflamation in wrists/elbows makes me have pain so severe I can’t use the keyboard.
Handle customer complaints fast and effectively to ensure that we provide all of our customers with the best buying experience. Due to fatigue and joint inflamation, can take me much longer to do duty, lhr job takes 2-3hrs.
Hi H* H* Hs H* ❖
Ensure that the store image is consistent with the company’s standards and reputation for cleanliness. Cleaning windows, floors, counters causes pain [in] knees, back, shoulder, wrists.
Maintenance: Provide routine preventative maintenance to keep all equipment operating at maximum efficiency. I can’t climb a ladder, reach overhead or get onto knees to do [these tasks].
Ensure that all pricing procedures and guidelines are correct as listed in the pricebooks for all merchandise. When right wrist + elbow is inflamed I can’t use pricegun.
* * * * * *

See id. Moreover, in her application for New York Disability Insurance, which she made in July 2007, Plaintiff asserted that

“my injuries and illness have caused me to be unable to perform requirements of my work such as standing in one spot for long; walking, lift, carry cases of milk, water, stock shelves, work in cold, lift more than 25 pounds, bending, squatting, climb a ladder, sweep, mop, shovel. Also my joints will swell, when my hands, wrists, elbows are involved I cannot use the cash register, raise arms to get cigs, scan items, write, type or pick up even light weight items. I have chronic pain and fatigue.”

See Guinup Decl. at ¶ 14 (quotation omitted). Defendant asserts that, in light of these statements, judicial estoppel bars Plaintiffs discrimination claim.

“The doctrine of judicial estoppel prevents a party from asserting a factual position in one legal proceeding that is contrary to a position that it successfully advanced in another proceeding.” Rodal v. Anesthesia Group of Onondaga, P.C., 869 F.3d 113, 118 (2d Cir.2004) (citation omitted). “Thus, ‘[a] party invoking judicial estoppel must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment.’ ” Id. (quotation omitted). The Second Circuit recently affirmed that “[j]udicial estoppel applies to sworn statements made to administrative agencies such as the Social Security Administration as well as to courts.” DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir.2010) (citation omitted).

The Supreme Court in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), explained the relevant considerations for a court facing potentially inconsistent statements as follows:

When faced with a plaintiffs previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiffs good-faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.”

Id. at 807, 119 S.Ct. 1597. As such, “when an individual’s prior submission regarding his disability to an adjudicatory body contains a ‘purely factual statement] that directly contradices]’ a statement made in a subsequent ADA claim, and the two ‘[canjnot be reconciled with any amount of explanation,’ judicial estoppel will preclude the ADA claim.” Rodal, 369 F.3d at 118 (quotation omitted).

Plaintiff has received Social Security Disability benefits effective June 2007 to the present. See Dkt. No. 25 at ¶ 84. Plaintiffs sworn statements in her application for Social Security Disability benefits make clear that, as of May 29, 2007, she was unable to perform nearly all of the “Responsibilities” and “Requirements” of her job as store manager. Despite ample opportunity to do so, Plaintiff has not come forward with an explanation for the inconsistency between the statements in her Social Security Disability benefits application and her claim in this case that she was qualified to perform the essential functions of her job, with or without reasonable accommodation.

Plaintiff relies on Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir.2000), to argue that judicial estoppel is inappropriate in the present matter. In Parker, the plaintiff, in his long-term disability benefits application, indicated that he could not work because he was “ ‘completely incapacitated — disabled—treatment daily.’ ” Id. at 334 (quotation omitted). Thereafter, in his Social Security Disability benefits application, he stated that he “ ‘ha[d] problems sitting standing and walking for sustained period; [had] constant pain ... [and] problems in legs.’ ” Id. (quotation omitted). The plaintiff further stated that he “ ‘became unable to work’ on March 16, 1995, and that he was ‘still disabled.’ ” Id. (quotation omitted). The Second Circuit held that judicial estoppel was inapplicable in this situation because a reasonable juror could find that the plaintiff was capable of performing the essential functions of his job with a reasonable accommodation or on a part-time basis, despite this facial conflict. See id. The court also noted that the plaintiff provided reasonable explanations for this facial conflict and that his description of himself as “ ‘completely incapacitated — disabled’ ” did not indicate whether he was capable of performing the essential functions of his job with a reasonable accommodation. See id. at 335.

Here, unlike Parker, Plaintiff made more than mere conclusory statements that she was “disabled” or that she simply had trouble standing, was in constant pain, or that she could not sit for prolonged periods of time. Although the application for Social Security Disability benefits is unconcerned with a person’s ability to perform his job with “ ‘reasonable workplace accommodations,’ ” See id. at 334 (quotation omitted), Plaintiffs application made clear that, regardless of the accommodation offered, she would still not be able to perform the essential functions of her job. As discussed above, Plaintiff included as part of her Social Security Disability benefits application Defendant’s job responsibilities and requirements for the store manager position. Plaintiff clearly indicated that, as of May 29, 2007, she was incapable of performing nearly all of the material aspects of her job. Moreover, Plaintiff has failed to submit evidence that her physician ever cleared her to return to work. Despite this failure, Plaintiff claims that, “[a]fter my 6-8 week medical hiatus, I was capable of returning as a manager at store # 360 on a reduced hour basis or with accommodation on a full time basis.” See Guinup Decl. at ¶ 16.

Also telling is that Plaintiff had not filled out a single job application from the time she left Defendant’s employ to the date of her deposition. See Guinup Tr. at 16. She stated that she had not filled out any job applications because she had “been on restrictions for any type of physical work since May of 2007.” See id. at 18. Plaintiff then admitted that she had been on “full restriction,” prohibiting her from working at all, since her back surgery on March 17, 2008, and that she was on full restriction starting May 29, 2007, but could not recall if her physician ever lifted that restriction before her back surgery. See id. at 23-24. She believed that she might have been “given a partial restriction for a brief time.” See id. at 24. In fact, Plaintiff admitted that both Dr. Haher and Dr. Arango had her on restriction from work and admitted that Dr. Arango had never released her to return to work. See id. at 143^15. Plaintiffs medical records do not support her assertion that she was ever released to return to work. See Henzel, 285 F.Supp.2d at 276 (holding that “[i]t is axiomatic that an individual cannot perform the essential functions of a job if he is completely unable to work regardless of accommodation” (collecting cases)).

Although Plaintiff states in her declaration that, “[ajfter my 6-8 week medical hiatus, I was capable of returning as a manager at store # 360 on a reduced hour basis or with accommodation, on a full time basis[,]” the record fails to support this allegation. See Guinup Decl. at ¶ 16. Despite ample opportunity to do so, Plaintiff fails to contradict the statements that she made in her applications for Social Security Disability benefits and long-term disability benefits; and, in fact, her deposition statements further support the conclusion that she was incapable of performing the essential functions of her job as of the date of her termination through the present. See Micari v. Trans World Airlines, Inc., 43 F.Supp.2d 275, 281 (E.D.N.Y.1999) (holding that, “[although ‘reasonable accommodation’ may include modifications to the work schedules and alterations of the assignments and/or physical equipment, ‘ “reasonable accommodation” does not mean elimination of any of the job’s essential functions’ ” (quotation and other citation omitted)).

Based on the foregoing, the Court finds that judicial estoppel prevents Plaintiff from now asserting that she was capable of performing the essential functions of her job as of May 29, 2007, through the present. As such, the Court grants this part of Defendant’s motion for summary judgment and dismisses Plaintiffs ADA and NYHRL discrimination claims. See Giaquinto v. N.Y. Tel. Co., 135 A.D.2d 928, 929, 522 N.Y.S.2d 329 (3d Dep’t 1987) (holding that, under the NYHRL, “if the individual’s disability actually prevents him from performing his job in a reasonable manner, then discharge from employment because of his poor work performance does not constitute unlawful discrimination” (citations omitted)).

B. Failure to accommodate

To establish a prima facie case of discrimination because of disability premised on an employer’s failure to accommodate, a plaintiff must show. “ ‘(1) that [s]he is an individual who has a disability within the meaning of the [ADA], (2) that an employer covered by the statute had notice of h[er] disability, (3) that with reasonable accommodation, [s]he could perform the essential functions of [her position], and (4) that the employer has refused to make such accommodations.’ ” Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir.2001) (quoting Stone v. City of Mt. Vernon, 118 F.3d 92, 96-97 (2d Cir.1997)).

As discussed above, Plaintiff failed to establish that she was able to perform the essential functions of her position, with or without a reasonable accommodation. Said another way, no accommodation existed that would have allowed Plaintiff to perform the essential functions of her job. As such, the Court holds that Plaintiff has failed to set forth a prima facie case of failure to accommodate; and, therefore, dismisses Plaintiffs failure to accommodate claim. See Henzel, 285 F.Supp.2d at 276-77 (collecting cases); see also Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 8 (2d Cir.1999).

C. Retaliation under the ADA

The ADA makes it unlawful for an employer “to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of ... any right granted or protected by this chapter.” 42 U.S.C. § 12203(b). The ADA further renders it unlawful for an employer to “discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).

To defeat a motion for summary judgment addressed to a claim of retaliation under the ADA, a plaintiff must first present sufficient evidence to make out a prima facie case — that is, evidence sufficient to permit a rational trier of fact to find [as follows]: (1) that he engaged in protected participation or opposition under the ADA; (2) that the employer was aware of this activity; (3) that the employer took adverse action against the plaintiff; and (4) that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.

Valtchev v. City of N.Y., No. 06 Civ. 7157, 2009 WL 2850689, *6 (S.D.N.Y. Aug. 31, 2009) (citing Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.2001)). If the plaintiff meets her prima facie burden, the defendant may rebut this by “point[ing] to evidence of a legitimate, nonretaliatory reason for the challenged employment decision[.]” Id. (citing Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir.2001)). If the defendant meets this burden, “the plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer’s explanation is merely a pretext for impermissible retaliation.” Id. (citation omitted).

Protected activity includes the making of a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing pursuant to the ADA. See 42 U.S.C. § 12203(a). Requesting reasonable accommodations for a disability may also constitute protected activity. See Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 149 (2d Cir.2002) (discussing that a retaliation claim may be based on a request for reasonable accommodation (citation omitted)); Jenkins v. N.Y.C. Transit Auth., 646 F.Supp.2d 464, 473 (S.D.N.Y. 2009) (citations omitted).

Here, Plaintiff asserts that

[Defendants’ retaliatory conduct included, but was not limited to, decreasing Plaintiffs store’s Payroll Budget Hours which then required Plaintiff to work extra hours. Said payroll budget cuts also made it difficult for Plaintiff to attend doctor’s appointments. To attend her medical appointments, Plaintiff would have to obtain coverage, which would increase the payroll budget. The detrimental effects that these inflexible payroll budget quotas were having on Plaintiffs disabilities were directly communicated to management, which failed to accommodate Plaintiffs disability.

See Dkt. No. 22 at 23. Thereafter, Plaintiff claims that she first complained about the lack of accommodation in April of 2007, that her healthcare provider directed her to stop working on May 29, 2007, and that Defendant then terminated her on June 4, 2007. See id. at 23-24. Plaintiff attempts to assert that she was retaliated against for requesting an increase in her store’s payroll budget hours, which is shown by the fact that “no other store manager was ever disciplined or terminated as a result of exceeding his/her stores’ Payroll Budget Hours.” See id. (citing Sweeney Dep. 94-107; Exhibit “G”).

First, Plaintiff may not claim that her emails to Mr. Nucci constituted protected activity and that the decrease in payroll budget hours, which occurred prior to the emails, was retaliation for the same emails. It is axiomatic that Defendant could not have retaliated against Plaintiff for conduct in which she had not yet engaged.

Second, to the extent that Plaintiff asserts that Defendant retaliated against her for taking medical leave on May 29, 2007, Defendant has put forth a legitimate, non-discriminatory reason for discharging her, i.e., insubordination. In April 2007, Mr. Nucci emailed Plaintiff, along with other store managers in his coverage area, stating that payroll budget hours were going to be reduced at many store locations. See Dkt. No. 19-9 at 5. Mr. Nucci further provided that no overtime would be permitted, that store managers “may not go above [the] budgeted payroll hours that you have been given[,]” and that, if an employee “calls in,” the store manager may have to be the person who works during that time slot so that overtime payments do not occur. See id.

Soon thereafter, Plaintiff emailed Mr. Nucci to inform him that she did not believe that she could operate her store on 340 hours from April to September; and, in fact, she claimed that she would need approximately 370 hours from April through September. See Dkt. No. 19-9 at 6. Plaintiff informed Mr. Nucci that “my body is already beat to heck from the physical work at this location, and I am supposed to temporarily be on light duty.” See id. On April 27, 2007, Mr. Nucci again emailed store managers that they were not permitted to go over their scheduled payroll budget, and he further advised that their failure to abide by this new rule would result in the manager being “document[ed],” which he was already forced to do. See id. at 8-9. Mr. Nucci sent another email to all area store managers at the end of April, expressing the same policy concerns. See id. at 10.

On May 5, 2007, Plaintiff again requested an increase in her store’s payroll budget hours, which Defendant denied. See id. at 7; Guinup Tr. at 92-93. Again, Plaintiff wrote to Mr. Nucci for clarification; and Mr. Nucci responded, again, that a written counseling would be given to any manager who failed to follow these new guidelines. See Dkt. No. 19-9 at 11-12. Also, in response to Plaintiffs concerns, Mr. Nucci wrote to Plaintiff and told her to email him what she believed to be her payroll budget requirements and informed her that he would “try to get your hours increased a bit. The increase has to be approved, no other way.” See id. at 13.

Despite being instructed that she was to use no more than 340 hours per week, on May 6, 2007, Plaintiff sent Mr. Nucci an email indicating that she had scheduled her store for 348 hours. See id. at 15. Mr. Nucci responded that she was required to reduce her hours to 340. See id. at 14. The following week, Plaintiff again emailed Mr. Nucci and indicated that she had scheduled her store for 351 hours, to which Mr. Nucci responded that she must reduce her hours to 340. See id. at 16-17. On or about May 21, 2007, Mr. Nucci again asked Plaintiff to comply with her budgeted hours. See id. at 20; Guinup Tr. at 118. Then, on Friday, May 25, Mr. Nucci inquired if Plaintiff had scheduled more than 340 hours, to which Plaintiff indicated that she had. See Dkt. No. 19-9 at 18-19. Finally, on May 29, 2007, Plaintiff emailed Mr. Nucci indicating that she had scheduled her store for 359.38 hours for the week ending on May 26 and for 350 hours for the following week. See id. at 21; Guinup Tr. at 119-20.

Clearly, Plaintiffs conduct constituted insubordination. She repeatedly ignored the demands of her superiors; and, despite her claims, Plaintiff failed to make clear that she had increased her budgeted payroll hours because she needed an accommodation. Only once did she mention that her “body is already beat to heck from the physical work at this location, and I am supposed to temporarily be on light duty.” See Dkt. No. 19-9 at 6. Although Plaintiff contends that this conduct was her request(s) for reasonable accommodation, Defendant reasonably believed that this conduct was insubordination; and Plaintiffs isolated comment regarding her body being “beat to heck” cannot be construed as a request for an accommodation.

Nonetheless, despite the fact that Defendant has come forward with a legitimate, nondiscriminatory reason to discharge Plaintiff, an issue of fact exists regarding whether this reason was merely pretextual. Although Plaintiffs comment that her body was “beat to heck” did not constitute a request for a reasonable accommodation and, therefore, a protected activity, taking medical leave is a protected activity within the meaning of the ADA. See Henzel, 285 F.Supp.2d at 278. On the Tuesday following Plaintiffs May 29, 2007 email — the Tuesday after Memorial Day — ■ Mr. Nucci called Plaintiff to schedule a meeting with her for the next day; Plaintiff, however, indicated that she had a doctor’s appointment that day and would have to reschedule. See Guinup Tr. at 121-22. This meeting never occurred, however, because Plaintiffs doctor placed her on a work restriction from that day forward. Defendant terminated Plaintiff several days after she requested medical leave.

Although the Court has doubts about Plaintiffs ability to prove this claim at trial, the fact that her termination came just days after she informed Defendant that she would be required to take six to eight weeks medical leave creates an issue of fact precluding summary judgment. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001) (holding that “[t]he causal connection needed for proof of a retaliation claim ‘ “can be established indirectly by showing that the protected activity was closely followed in time by the adverse action” ’ ” (quotation omitted)).

Based on the foregoing, the Court denies Defendant’s motion for summary judgment on Plaintiffs retaliation claim.

D. Hostile work environment under the ADA

Plaintiff alleges that she was subjected to a hostile work environment. Courts analyze hostile work environment claims under the ADA and the NYHRL using the same standard that they apply to Title VII hostile work environment claims. See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir.2006) (NYHRL) (citations omitted); Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 584 (S.D.N.Y.2008) (ADA) (footnote omitted).

To establish a prima facie case of hostile work environment, the plaintiff must show that she “1) is a member of a protected class; 2) that she suffered unwelcome harassment; 3) that she was harassed because of her membership in a protected class; and 4) that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.” Monterroso, 591 F.Supp.2d at 584 (footnote omitted). The standard is a “ ‘demanding one,’ ” and the alleged harassment must be sufficiently “ ‘offensive, pervasive, and continuous enough’ to create an abusive working environment.” Id. at 584-85 (footnote omitted). To determine whether conduct rises to such a level, “courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse.” Robins v. N.Y.C. Bd. of Educ., No. 07 Civ. 3599, 2010 WL 2507047, *11 (S.D.N.Y. June 21, 2010) (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)) (other citation omitted). “The sufficiency of a hostile work environment claim is subject to both subjective and objective measurement: the plaintiff must demonstrate that she personally considered the environment hostile, and that the environment rose to some objective level of hostility.” Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 188 (2d Cir.2001) (citations omitted).

The few facts that Plaintiff provides in her complaint and other filings to support this claim fall far short of establishing a hostile work environment. Her evidence consists of a comment that either Ms. Cavallo or an outside insurance agent made at a health insurance meeting discussing the fact that rates would be going down because certain claims would no longer be covered. See Guinup Tr. at 130. Moreover, she also makes a conclusory allegation that, in 2004, Defendant terminated her co-manager and another employee after they took medical leaves for injuries. See id. at 134-35. Plaintiff admitted, however, that she had no direct knowledge regarding what happened to those employees. See id.

Based on the foregoing, the Court finds that Plaintiff has failed to present evidence that would lead a reasonable person to believe that Defendant created a hostile work environment. Therefore, the Court grants Defendant’s motion for summary judgment with respect to Plaintiffs hostile work environment claim.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties’ submissions and the applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendant’s motion for summary judgment is GRANTED in part and DENIED in part; and the Court further

ORDERS that Plaintiffs counsel shall initiate a telephone conference, using a professional conferencing service, with the Court and opposing counsel on April 12, 2011, at 9:30 a.m., to set a trial date for this action.

IT IS SO ORDERED. 
      
      .Although not specifically pled, Defendants believe that Plaintiff is also attempting to allege a harassment/hostile work environment claim and failure-to-accommodate claim. As such, the Court will address these additional claims as well.
     
      
      . Unless otherwise noted, the Court will refer to Defendant Petr-All Petroleum Corporation, Defendant Express Mart, and Defendant PetrAll Petroleum Consulting Corporation .as “Defendant.”
     
      
      . Unless otherwise noted, the parties do not dispute the "Background” facts.
     
      
      . Rule No. 5 of Defendant’s Policies prohibits "[Reporting to work under the influence of alcohol or drugs, or consuming intoxicants on company premises.” See Dkt. No. 19-2 at 3 n. 3.
     
      
      . “A claim of disability discrimination under the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (McKinney 2005), is governed by the same legal standards as govern federal ADA claims.” Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 184 n. 3 (2d Cir.2006) (citation omitted).
     
      
      . Although the Second Circuit "has not expressly held that the ADA authorizes claims for hostile work environment, district courts have found that the ADA encompasses hostile work environment claims." Monterroso, 591 F.Supp.2d at 584 (footnote omitted).
     
      
      . The Court also notes that, although Point IV of her response to Defendant's motion for summary judgment is labeled as a hostile work environment claim and discusses the fact that district courts within the Second Circuit, as well as other Courts of Appeal, have recognized hostile work environment claims under the ADA, Plaintiff, thereafter, recites the applicable standard for a retaliation cause of action and fails to discuss the merits of her hostile-work environment claim. See Dkt. No. 22 at 21-24. As such, the Court, alternatively, concludes that Plaintiff has abandoned her hostile work environment cause of action and grants Defendant’s motion for summary judgment on that basis as well. See Lipton v. Cnty. of Orange, 315 F.Supp.2d 434, 446 (S.D.N.Y.2004) (holding that, "[t]his Court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed” (citing cases)).
     
      
      . As a result of this Memorandum-Decision and Order, the only claim that remains is Plaintiff's ADA and NYHRL retaliation claim.
     