Lettau v. 1199 SEIU Natl. Benefit Fund

2025 NY Slip Op 30007(U)

• Court: New York Supreme Court, New York County
• Decided: January 2, 2025
• Docket: Index No. 158020/2018
• Status: Unpublished

Opinion

Lettau v 1199 SEIU Natl. Benefit Fund 2025 NY Slip Op 30007(U) January 2, 2025 Supreme Court, New York County Docket Number: Index No. 158020/2018 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 158020/2018 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 01/02/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 158020/2018 EDWARD LETTAU MOTION DATE 12/20/2024 Plaintiff, MOTION SEQ. NO. 003 -v- 1199 SEIU NATIONAL BENEFIT FUND, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 87, 88, 89 were read on this motion to/for SUMMARY JUDGMENT .

Defendant’s motion for summary judgment is granted.

Background

Defendant is a multi-employer trust fund and plaintiff used to work for defendant as a

telephone representative; his job was to take calls from members and answer their questions. He

claims that was fired in December 2016 because of his disabilities. Plaintiff alleges that he

provided defendant with documentation from medical providers but defendant still fired him for

missing too much work.

Defendant, on the other hand, claims it did not discriminate against plaintiff and that his

position as a telephone representative required timely and regular attendance. Defendant asserts

that plaintiff was frequently absent during the entire time he was employed by defendant. In his

last year of employment, defendant asserts that plaintiff was absent 68 times, which represented

more than 25% of all workdays. Defendant contends that there was no documentation provided

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to show that his purported disabilities required work restrictions. Defendant claims it allowed

plaintiff as much leniency as it could, but eventually decided to fire him.

Previously, this Court granted defendant’s motion for summary judgment. However, the

Appellate Division, First Department reversed, finding that the motion “should have been denied

because the record raises an issue of fact as to whether defendant fulfilled its obligation to

engage in a cooperative dialogue with plaintiff, a disabled employee, to determine whether a

reasonable accommodation of his disability could be devised” (Lettau v 1199 SEIU Natl. Benefit

Fund, 200 AD3d 462, 155 NYS3d 70 (Mem) [1st Dept 2021]).

Now, after discovery has been completed, defendant moves again for summary judgment.

It insists that the record indisputably demonstrates that defendant engaged in a cooperative

dialogue for years prior to the termination of plaintiff’s employment. Defendant insists that many

conversations and meetings took place to address plaintiff’s continued absences from work and

that plaintiff simply refused to meaningfully participate in these discussions. Defendant contends

that plaintiff only demanded that defendant take into account his issues after he was fired.

Defendant explains that plaintiff started working for defendant as a telephone

representative. It insists that a person in this role answers calls from defendant’s members about

eligibility, claims and benefits. Defendant observes that the main requirement of a telephone

representative is to answer telephone calls. It argues that such a requirement necessarily entails

physical presence at the office and punctuality. Defendant points to an attendance and lateness

policy (NYSCEF Doc. No. 56), which contains progressive discipline for employees who are late

or absent (or both).

Defendant maintains that plaintiff received an oral warning for excessive absences in

2005, just a year after he started working for defendant. It points out that plaintiff later received

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an oral warning in January 2007 followed by four written warnings throughout 2007. Defendant

contends that plaintiff should have been fired at this point but instead received a suspension for

these excessive absences. Unfortunately, plaintiff’s absences continued throughout the next few

years and he eventually received another suspension.

Defendant argues that because plaintiff’s physical ailments required frequent bathroom

visits, he received a “reduced-call volume accommodation.” That is, defendant claims it reduced

the number of phone calls plaintiff had to field despite the fact that answering the phone is an

essential part of his job. Defendant also claims it moved plaintiff’s desk closer to the bathroom.

At the deposition of defendant’s manager of employment relations, she (Ms. Jessica

Bustamante, now Ms. Torres) explained that there were many conversations about providing

alternatives to his termination (NYSCEF Doc. No. 62 at 33). Ms. Bustamante observes that

defendant hoped to give plaintiff enough of a grace period so that he could accumulate the

requisite hours for FMLA leave but that he simply was absent too much (id.).

She observed that plaintiff had 26 unexcused absences and that defendant excused 16 of

these absences, even though only 2 unexcused absences were necessary for the imposition of

progressive discipline under the attendance policy (id. at 34). Ms. Bustamante emphasized that

the absences used to justify plaintiff’s termination were not from the grace period (id. at 36).

Defendant contends that the defendant’s manager of human resources for benefits

discussed with plaintiff about taking a disability leave in April 2016 but that plaintiff did not

think his doctors would “put him out on disability” (NYSCEF Doc. No. 70 [email chain]).

Defendant also points to a meeting it had with plaintiff in April 2016 at which time off options,

disability leave, FMLA leave and doctor’s appointment scheduling were discussed. However,

according to defendant, plaintiff did not engage with any of these options and instead he

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continued to incur unexcused absences throughout 2016. Defendant argues that plaintiff never

claimed that he was unable to work due to a medical condition or ask for these absences to be

waived. Defendant then suspended plaintiff for three days in July 2016. It contends that after

more discussions, plaintiff called out another five times throughout August, September and

November 2016 before defendant finally terminated plaintiff’s employment on December 6,

2016.

In opposition, plaintiff claims he suffered from many physical ailments throughout his

time working for defendant including diabetes, gastrointestinal problems and severe anxiety. He

claims these issues did not prevent him from doing his job but that they flared up from time to

time. Plaintiff details that he struggled to qualify for FMLA leave which required him to work

1250 hours in the previous 12-month period. He admits that he did not have FMLA protection in

2016 and that he began to receive progressive discipline for his continuous absences.

Plaintiff claims that the instant motion is barred under the law of the case doctrine as

defendant cannot make multiple summary judgment motions. He claims that his disability claim,

brought under the New York City Human Rights Law (“NYCHRL”), requires the Court to deny

the instant motion even if the Court were to consider the instant motion on the merits. Plaintiff

argues that defendant did not engage in any cooperative dialogue whatsoever and that plaintiff

terminated him when he was just a few hours shy of qualify for FMLA protections.

Plaintiff claims that the “clean slate” he received was not a cooperative dialogue and that

his lifelong chronic conditions were not going to resolve after a temporary leave. Plaintiff also

insists that the grace period he received after his July 2016 suspension is utterly confusing and,

in any event, he denies he received a grace period of any kind. He contends that despite

defendant’s arguments to the contrary, providing him an accommodation would not constitute an

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undue burden. He points to the affidavit of his purported expert (NYSCEF Doc. No. 83) who

argues that “Accommodating an operator with a chronic illness that causes unscheduled absences

poses no particular challenge for a call center.”

In reply, defendant emphasizes that its attendance policy does not violate the NYCHRL.

In fact, it claims that the policy is liberal and collectively-bargained, and allows many absences.

Defendant argues that this motion is only about whether or not it engaged in a cooperative

dialogue with plaintiff and that plaintiff’s opposition does not dispute that there were many

discussions between the parties. It argues that plaintiff claims, without any caselaw support, that

defendant was supposed to find a way to keep plaintiff employed despite his inability to satisfy

the demands of the attendance policy.

Defendant emphasizes that plaintiff refused to apply for even short-term disability leave

despite defendant raising this issue on numerous occasions. It points out that plaintiff never

submitted medical documentation to support his assertions that his absences were caused by his

disabilities. Defendant argues that the doctor’s notes plaintiff provided only excused his absences

but, critically, they did not indicate any chronic conditions that would necessitate ongoing work

restrictions.

Discussion

As an initial matter, the Court declines to deny the instant motion on the ground that it

constitutes an impermissible successive summary judgment motion. “Exceptions are permitted to

the rule against successive summary judgment motions not only when evidence has been newly

discovered since the prior motion . . . , but also when ‘other sufficient cause’ for the subsequent

motion exists” (Varsity Tr., Inc. v Bd. of Educ. of City of New York, 300 AD2d 38, 39, 752

NYS2d 603 [1st Dept 2002]). Here, the prior summary judgment motion was filed prior to

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discovery and before any depositions were held. This is not a situation in which movant made a

successive motion and cited evidence that was clearly available when it made the prior motion

(c.f. Brown Harris Stevens Westhampton LLC v Gerber, 107 AD3d 526, 968 NYS2d 32 [1st

Dept 2013]).

In this Court’s view, the Appellate Division, First Department’s decision requires this

Court to consider the parties’ arguments concerning cooperative dialogue.1 “The City HRL

makes it an unlawful discriminatory practice for an employer ... to refuse or otherwise fail to

engage in a cooperative dialogue within a reasonable time with a person who has requested an

accommodation” (Marsteller v City of New York, 217 AD3d 543, 545 [1st Dept 2023], appeal

dismissed, lv to appeal denied, 41 NY3d 960 [2024] [quotations and citation omitted]).

The rule cited above seems to require, as an initial finding, that plaintiff requested an

accommodation. In plaintiff’s opposition, he argues that he need not request an accommodation

because defendant knew of his disabilities and that, in any event, he did request one. The only

citation he includes for the proposition that he requested an accommodation was in his attorney’s

affirmation (NYSCEF Doc. No. 85 at 17). The attorney’s affirmation simply cites to an affidavit

from Ms. Bustamante (now Ms. Torres, defendant’s witness) in which she states that plaintiff

“never requested or suggested any accommodation from the Fund other than that his excessive

absences be overlooked” (NYSCEF Doc. No. 80, ¶ 19). It is unclear to this Court how this

supports plaintiff’s claim that he requested an accommodation or that defendant refused to

engage in a cooperative dialogue. Demanding that his absences be wholly overlooked is not the

same as documenting medical issues that prevented him from fulfilling his job responsibilities.

1 The Court makes no findings concerning defendant’s arguments about the alleged retroactive effect of various human rights law statutes or about issues raised with the First Department’s decision. It is not this Court’s role to opine whether the appellate court’s opinion is correct. 158020/2018 LETTAU, EDWARD vs. 1199 SEIU NATIONAL BENEFIT Page 6 of 9 Motion No. 003

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Of course, even if the Court could somehow find that defendant knew the full extent of

plaintiff’s conditions and that he had requested an accommodation, the record submitted on this

motion is filled with examples of a cooperative dialogue. The record shows that defendant gave

plaintiff many, many chances to balance his job responsibilities with his medical issues. There is

no dispute that defendant could have fired plaintiff much earlier than it did. In fact, the

grievance response (plaintiff’s union grieved his termination) noted that:

“The Grievant has been disciplined for both excessive absence and lateness since 2005. Throughout this time, His Leadership team did advise him of FMLA so he would be able to address his health concerns as needed. The Grievant has been aware of the Family and Medical Leave Policy LA 3.0, which states that eligible employees must have worked at the Fund for at least twelve months and for at least 1,250 hours or as specified by law. From 2007-2016, the Grievant’s Department leadership allowed grace periods, which offered the opportunity for the Grievant to obtain the hours necessary in order to be eligible for FMLA. Leadership also continuously worked with his excessive absence and lateness history due to his circumstances. However, it is imperative that the Fund hold all employees to the Attendance Policy as appropriate” (NYSCEF Doc. No. 61).

This is not a situation in which an employer made little or no effort to work with an

employee suffering from a disability (c.f. Hosking v Mem. Sloan-Kettering Cancer Ctr., 186

AD3d 58, 65 [1st Dept 2020] [finding an issue of fact concerning a cooperative dialogue under

the NYCHRL where the employer “essentially told plaintiff that she did not fit within the new

model and that she should apply for another position within the hospital”]; see also Gordon v

Consol. Edison Inc., 190 AD3d 639 [1st Dept 2021] [finding an issue of fact where the employer

refused to explore any accommodations]). The defendant here refrained from imposing the

strictest application of its attendance policy for years in favor of working with plaintiff to address

his repeated absences. Defendant practically begged plaintiff to work with it; however, the

record shows that plaintiff refused to meaningfully engage in the cooperative dialogue initiated

by defendant—he did not submit a cogent request for an accommodation that detailed his

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medical conditions nor did he explain why he declined to pursue even a short term medical leave

proposed by defendant.

Moreover, the Court agrees with defendant’s characterization of plaintiff’s purported

“accommodation.” It seems that plaintiff’s preferred accommodation was that he wanted all of

his absences to be ignored simply by pointing towards his medical issues. And while his doctors

purportedly excused his absences, he never had his doctors specifically document the need for

any type of accommodation. In this Court’s view, that is not a reasonable suggestion. It would

require defendant to employ plaintiff as a telephone representative (whose essential function is to

remain available to answer telephone calls from members) where he could come in late and call

out sick whenever he wishes. Such an accommodation, if it could be characterized as such,

would place an undue burden on defendant who would be forced to constantly rearrange how it

staffs its telephone representatives. Plaintiff’s insistence that his absences had no effect on

defendant strains credulity.

Summary

As this Court noted in the prior decision, there is little doubt that plaintiff suffers from

debilitating medical issues. However, defendant is entitled to enforce its attendance policy to

ensure that its members are adequately served and so that all of its employees are held to similar

standards. Here, defendant overlooked many absences for nearly a decade and tried to find a

solution so that plaintiff could both satisfy his job responsibilities and address his medical

concerns. Instead of engaging in these options, plaintiff continued to call out sick again and

again and, eventually, defendant could no longer overlook these excessive absences.

Accordingly, it is hereby

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ORDERED that the defendant’s motion for summary judgment is granted, the case is

dismissed and the Clerk is directed to enter judgment accordingly along with costs and

disbursements upon presentation of proper papers therefor.

1/2/2025 $SIG$ DATE CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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