Tillman v. Verizon New York, Inc. (118 F. Supp. 3d 515, 2015)

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge:

The Plaintiff Marlayna Tillman (“Tillman” or the “Plaintiff’) commenced this action against her former employer, Defendant Verizon New York, Inc. (“Verizon”), and two of her former supervisors, Defendants John Dinkins (“Dinkins”) and Ruddy Reyes (“Reyes”), together with Verizon and Dinkins, the (“Defendants”), alleging disability discrimination in violation of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Presently before the Court is a motion by the Defendants for summary judgment seeking to dismiss the Plaintiff’s Complaint in its entirety.

For the reasons set forth in this opinion, the Court grants summary judgment dismissing the Plaintiffs federal claims and declines to exercise supplemental jurisdiction over her state and city law claims.

I. Background

Unless otherwise noted, the following facts are not in dispute and are construed in favor of the Plaintiff.

A. The Parties

Tillman is an individual residing in Kings County, New York.

Verizon is a domestic corporation, which maintains a place of business at 140 Wall Street in New York City. At all relevant times, Defendant Dinkins was employed by Verizon in the position of Supervisor Logistic Services. Defendant Reyes was employed by Verizon as Manager Northeast Logistics.

At all the relevant times, Dinkins and Reyes were the Plaintiffs supervisors. Reyes was also Dinkins’s supervisor.

B. The Plaintiffs Employment by Verizon

On October 27, 2008, the Plaintiff was hired by Verizon as a temporary employee. Her job title was “Driver B.” Her direct supervisors were Defendant Dinkins and non-party Tereska Flood.

For the first two months of Tillman’s employment she worked in Verizon’s Springfield Gardens facility in Queens, New York. However, after the first two months, the Plaintiff worked exclusively from the company’s Plainview location in Nassau County.

With respect to the length of Tillman’s term as a temporary employee, Verizon provided the Plaintiff with a written job offer, advising her as follows:

Your employment, with Verizon may be covered under the terms of a collective bargaining agreement, and, if .so, the terms of that agreement govern the conditions under which [Verizon] may terminate your employment. Otherwise, please note employment with Verizon is employment-at-will and this letter does not represent an employment contract, which means either you or Verizon can terminate your employment at any time, for any reason or no reason, and with or without notice.

See Exhibit “F” to the Feb. 13, 2015 Declaration of Scott Casher (“Casher Decl.”).

It is undisputed that when Tillman was hired by Verizon, she became a member of a union and was covered by the “Agreement Between Verizon Services Corp. and Communications' Workers of America, AFL-CIO, District One, effective August 3, 2008” (the “CBA”). The CBA defines a “temporary employee,” in relevant part, as follows:

[O]ne who is engaged for a specific project or a limited period, with the definite understanding that his employment is to terminate upon completion of the project or at the end of the period, and whose employment is expected to continue for more than three (3) weeks but not more than three (3) years....

See Ex. “E” to the Casher Decl.

The Plaintiff does not materially dispute the applicability of this provision, or that her temporary term of employment was not to last more than three years.

Rather, Tillman believed that she would be given the opportunity to be made a permanent employee when her initial term expired. In this regard, the Plaintiff testified that she did not know whether she would be expected to apply for full-time employment at the expiration of her temporary term, but she understood that occasionally Verizon decided to hire temporary employees on a full-time basis. According to Tillman, these decisions were merit-based.

However, Tillman also testified that she does not recall ever being told that temporary employees were automatically hired on a full-time basis, and did not know whether such decisions were based on Verizon’s hiring needs at the time. Reyes testified that such decisions do depend on the. company’s hiring needs, and that Verizon hires temporary employees as a deliberate way of adding labor to address specific temporary needs.

The Plaintiff testified that, at the time of her hire, she' was one of nine or ten other individuals hired as temporary employees by Verizon. Reyes testified similarly.

Dinkins testified that Tillman was hired as part of a temporary team specifically assembled to work in the centralized pre-staging environment.

In this regard, the Plaintiff testified that her job consisted of occasional driving, but was mostly a “warehouse position” involving work on a loading dock, breaking down equipment, and building pallets for technicians in the field. Dinkins similarly testified that driving was not the Plaintiffs primary function. Tillman testified that this work required her to lift objects weighing more than five pounds on a regular basis. On occasion, the Plaintiff would be assigned a task-that "did not involve •lifting, such as removing batteries from Verizon'remote controls. However, Tillman testified that lifting objects weighing more than five pounds was a primary responsibility of her employment;

The Plaintiff testified that she was surprised to learn that the “Driver B” position was a warehouse job that involved infrequent driving. However, Reyes testified that “Driver B” is a “universal title” that encompasses many other job activities other than driving.

When a temporary Verizon employee reaches the end of his or her term, Verizon may terminate the employee. This process is referred to by the parties as being “job completed.” As described by Reyes, Verizon has discretion at the end of a temporary employee’s three-year term to determine that the employee’s services are no longer needed or to offer him or her a full-time position. Again, the undisputed evidence demonstrates that the decision to offer a temporary employee full-time employment is discretionary and dependent upon Verizon’s hiring needs.

The Plaintiff testified that the other temporary employees with whom she worked were all “job completed” at the expiration of their three-year terms. She understood that her co-workers were terminated because Verizon did not have enough work for them at that time.

Dinkins testified that, generally, Tillman was a capable employee. He testified that she was efficient, knowledgeable, able to take direction, generally punctual, and got along well with others. ■ However, he recalled two instances in which he was required to discipline her. First, Dinkins had a discussion with the Plaintiff concerning the manner in which she lifted a box. According to Dinkins, she liftéd the box in an unsafe manner. However, Dinkins spoke with Tillman about this incident and did not create a written record. Second, Dinkins testified that he had a discussion with the Plaintiff and her union .about the manner in which she performed one of her job duties, namely, replenishing set top boxes for technicians in the field. Dinkins testified that the Plaintiff performed this function incorrectly^ which breached the established protocol for such work. Din-kins also testified that he occasionally spoke with Tillman about lateness,, but never wrote her up for being late.

Reyes testified that he did not recall there being any negative issues with the Plaintiff s work performance.

C. The Plaintiffs Injury

Approximately three or four months into her employment with Verizon, Tillman began to experience pain and discomfort in her arms. She had not experienced similar pain or discomfort prior to working' at Verizon.

On January 22, 2009,, Tillman visited Dr. Arnold M. Illman of Nassau-Suffolk Orthopedic Associates, P.C. in connection with her arm pain. In a report created after the visit, Dr. Illman noted that the Plaintiff had developed pain on the “lateral aspect of both elbows.” Dr. Illman further noted that Tillman “continues to do the same type of work despite' pain.” The doctor diagnosed the Plaintiff with “[b]ilat-eral tennis elbow” and prescribed a medication for her called Naprosyn.

Tillman continued performing her job duties throughout the remainder of 2009, despite her injuries.

On or about December 17, 2009, the Plaintiff allegedly reported her injury to Defendant Dinkins. Dinkins disputes this. He testified that-, he .only learned of Tillman’s injury from a Verizon employee named Lynette Anthony, who conducted an investigation into Tillman’s injury and created an accident report to document it. The report concluded that Tillman suffered bilateral ulnar nerve injury from making repetitive lifting motions. Defendant Reyes is listed as an “investigation contact” on the report.

The Plaintiff testified that, at the time’ she reported her injury in December 2009, she knew that she was eventually going to be “job completed” and that her temporary employment with Verizon, would be terminated.

D. Allegations of Discriminatory Conduct by Dinkins and Reyes

Tillman testified that Defendant Dinkins treated her differently than other similarly-situated employees because he occasionally assigned a heavier workload to her than her coworkers. For instance, the Plaintiff explained that she, more than her coworkers, was required to perform the task of scanning converter boxes, which required lifting the boxes. In this regard, Tillman testified that her coworkers also did this job, but not to the same extent that she did. She testified that she does not know,what motivated Dinkins to assign a disparate workload to her.

However; other than assigning her an allegedly disparate workload, Tillman does not identify' any other difference in the way Dinkins treated her compared to similarly situated coworkers.

Tillman also stated that, at times, she and Dinkins did not “see eye to eye on a lot of things” but she did not elaborate on that point.

With respect to Reyes, the Plaintiff testified that he , “indirectly” discriminated against her by overseeing-and approving everything that took place in. the warehouse where Tillman worked.

Tillman testified that, during the period of time she was employed by Verizon, she was unaware that Verizon had anti-discrimination policies. According to Reyes, Verizon’s Code of Conduct contains such policies. Tillman testified that, despite receiving Verizon’s Code of Conduct, she did not read it. She further testified that, during the relevant time period, she did not contact Verizon’s human resources department or equal employment office for any reason.

E. The Plaintiffs Medical Leave

In mid-December 2009, the Plaintiff took several actions related to her injuries, namely, she applied for workers’ compensation benefits; she applied for short-term disability benefits through MetLife insurance company; and she took workers’ compensation disability leave from her employment with Verizon.

The Plaintiff testified that she received benefits for approximately one year after she stopped working at Verizon.

The undisputed evidence establishes that MetLife coordinated disability benefits on behalf of Verizon. In a letter regarding Tillman’s receipt of short-term disability benefits, a MetLife representative .named Sean Peltier wrote that Tillman had been approved for benefits through December 12, 2010, and that she would be responsible for communicating with MetLife and Verizon during her absence. The letter stated that if Tillman’s disability continued past December 12, 2010, she would be required to contact MetLife and so advise them. In order to continue her benefits past that date, the Plaintiff was instructed to arrange for her physician to fax specific medical information to MetLife for its consideration. In addition, the letter stated that, in the event Tillman’s doctor cleared her for work, with or without restrictions, prior to December 12, 2010, she “must contact MetLife and [her] Supervisor/Absence Administrator immediately.”

A claim activity log maintained by Met-Life during the Plaintiffs medical leave reveals close monitoring by MetLife of Tillman’s medical condition in late-2009 and throughout 2010. See Ex. “I” to Casher Deck Near-daily entries in this log note communication between Tillman and MetLife case workers; updates from Tillman’s doctor visits; and other pertinent information regarding her injuries.

In a note dated December' 1, 2010, Tillman’s independent treating physician, Dr. Robert Hecht of Island Musculoskeletal Care M.D., P.C., cleared her to return to work on light duty, with a restriction on lifting objects weighing more than five pounds.

Tillman testified that, upon receiving this note, she did not provide it to anybody at Verizon. Rather, she stated that she believed the doctor’s office had provided it to Verizon. Also, there is no evidence that Tillman provided the note to MetLife at this time.

On December 10, 2010, a representative of MetLife made an entry on Tillman’s claim activity log that stated, in pertinent part: “Marlayna Tillman ... had an IME [independent medical examination] appointment yesterday [December 9, 2010] at 10:30 A.M. She arrived at 9:30 A.M. and said that she could not stay for her 10:30 A.M. appointment.”

F. The Plaintiffs Return to Work

On Friday, December 17, 2010, at 5:12 P.M., Tillman wrote the following email to Dinkins:

J.D.—

My treating physician has cleared me to return to light duty work at Verizon, with restrictions. I spoke with Local 1104 reps and was advised that Verizon may not offer light duty work, however, there are current negotiations to re-hire the temporary Driver-B employees that were laid-off [sic ] in 2009.

Please clarify if you would, the availability of light-duty assignments as of this date, and advise on the status of rehiring temporary workers that were laid-off [sic ] in my classification.

Any information would be greatly appreciated.

Regards,

‘Jet’

Marlayna Tillman

See Ex. “M” to the Casher Deck

Before receiving a response to this email, sometime between 6:00 and 7:00 P.M. on December 17, 2010, the Plaintiff arrived at Verizon intending to work on the night shift.

She testified that, prior to returning, she did not speak with anybody at MetLife. Instead, after receiving clearance from her doctor on December 1st, she unilaterally decided to come to work on December 17th:

The Plaintiff testified that she “pretty much concluded that [her doctor’s note] had already been sent out to [Verizon], so they should have known that [she] was coming back on the 17th.” However, this is inconsistent with her e-mail to Dinkins on December 17th, which appears to advise him, for the first time, of her clearance to return on light duty. This is also inconsistent with Dinkins’s testimony that he never received notification from Met-Life that the Plaintiff had been approved to return to work. As discussed below, the evidence establishes that MetLife is the only entity with authority to approve injured employees returning to work, with or without restrictions.

Reyes also testified that he was not informed of the Plaintiffs intentions to return to work in December 2010. According to Dinkins, as far as Verizon was concerned, Tillman was still out on disability as of December 17, 2010.

Tillman testified that she did not know that certain procedures needed to be followed before she returned to work. She testified that she believed she could simply come back when she was ready, so long as she complied with the physical restrictions recommended by her independent treating physician. This is inconsistent with the letter from MetLife approving her short-term disability benefits. As noted above, in that letter, MetLife explicitly directed Tillman to, keep MetLife apprised of such matters. This is also inconsistent with her e-mail to Dinkins, which specifically requests information regarding the availability of light duty assignments.

Reyes testified that there is “a whole process” that Verizon is required to follow before injured employees may return to work. As he described, MetLife “accept[s] all the medical information, because we [Verizon] don’t deal with medical notes [or] doctors.” According to Reyes, all the medical information is marshaled by the MetLife case worker assigned to the employee’s disability claim, who evaluates it and then negotiates with Verizon on the employee’s behalf regarding" a return to work, with or without restrictions. Reyes testified that, before returning to work, Tillman “needs to follow that procedure.”

Reyes also stated that Verizon simply does not evaluate restrictions based on an independent doctor’s note; employees seeking to return to work must follow the procedure outlined above. This is consistent with Dinkins’s testimony, described more fully below, that the decision as to whether an employee can return to work and potentially be accommodated is ultimately made by MetLife. Reyes stated that “it is not [Verizon’s] responsibility to go out and proactively get people back to work.”

Nevertheless, the Plaintiff testified that she arrived on December ,17th for the night shift. She fails to explain why she assumed that she was supposed to work the night shift, saying only that she “concluded” as much.

When she arrived, she handed a copy of her doctor’s note to a Verizon supervisor named Eleanor' Moffatt-Pender, who Tillman then allegedly observed placing a call to. Defendant Dinkins. Tillman testified that Moffatt-Pender advised Dinkins that she had reported to work, and that Din-kins approved of her being assigned the task- of delivering Verizon’s intramural mail. Dinkins disputes this. He testified that when Moffatt-Pender called him, he advised her that Tillman must return to full duty or she cannot return at all.

Nevertheless, Moffatt-Pender assigned Tillman the task of delivering the intramural mail on the night of. December 17th, something she had never done before during her employment. This task allegedly did not require Tillman to lift anything over five pounds. Dinkins testified that this job typically belongs to a full-time employee and did not come' within the parameters of the special project,for which Tillman was temporarily hired. He emphasized the difference between full-time employees and temporary employees, namely, temporary employees are hired to exclusively perform work on a particular project; they may not be given work that otherwise belongs to a full-time employee. In fact, Moffatt-Pender is the supervisor of a department completely separate from that in which Tillman was hired to do temporary work. According to Dhikins, she is essentially his counterpart in a different department.

The interaction between Moffatt-Pender and Dinkins was memorialized by Moffatt-Pender shortly after midnight in an e-mail to Dinkins and Reyes. She wrote, in relevant part:

Per our conversation tonight. Jet [Tillman] came in at 6pm looking for you. Jet stated that she emailed you today informing you that she was coming in today. I emailed and called you. "When we spoke I told you that she was here looking for you. I put a copy of her letter [ie., the doctor’s note] under your door. The letter states light duty. Jet stated Metlife spoke to someone ... about her coming back on’ light duty. Per our conversation I had her do pics until you tell me further....

See Ex. “N” to the Casher Deck On Saturday, December 18, 2010, at 8:59 A.M., Dinkins forwarded Tillman’s e-mail to Reyes.

At 3:55 P.M. that same day, Reyes responded as follows: “OK. If she comes in on Monday we send her home unless she is at full duty with a note stating that.”

Tillman testified that, at some point over the weekend between Friday, December 17th, and Monday, December 20th, Din-kins left her a telephone message. According to Tillman, he notified her that she could not return to work until she had been cleared for full duty. He further advised her that if she attempted to come back to work before receiving such clearance, she would be sent home.

In response to this message, Tillman did not call Dinkins back and did not contact MetLife. In fact, the Plaintiff testified that she did not speak with anyone else about returning to work.

Dinkins’s recollection is different. He testified that he had a conversation with Tillman, although he could ■ not recall whether it was in-person or over the telephone. Dinkins testified that, prior to speaking with Tillman, he contacted a representative of Verizon’s human resources department for guidance on how to address Tillman’s situation. His inquiry was forwarded to MetLife, who indicated that it had not. approved the Plaintiff to return to work. Consequently, Dinkins advised Tillman that she could not be on Verizon’s property until she provided the required documentation clearing her to return to work.

On December 20, 2010, an entry was made on Tillman’s MetLife claim activity log. The entry stated, in pertinent part, that Tillman had been advised by MetLife that her disability benefits claim was denied due to her failure to stay for the scheduled IME on December 9, 2010. In addition, the entry states that Tillman tried to take the position that the IME had actually been scheduled for 9:30 A.M.; that she was, therefore, on time; and that the physician was late. However, this contradicts Tillman’s position, reflected in the December 10th entry, that she had arrived early for the IME and stated that she could not stay for the 10:80 A.M. appointment.

Another entry on December 21, 2010 appears to reflect that MetLife advised Tillman that it had not contacted Verizon on her behalf regarding a return to work with restrictions, or a possible accommodation. Also, the entry indicates that Met-Life did not intend to do so unless and until Tillman’s IME was completed.

On December 27, 2010, an additional entry was made in Tillman’s activity log, which provides, in pertinent part, as follows:

... There is no clinical update provided by HOP [“health care professional”] to support [Tillman]’s inability to perform her usual job duties. [Employ]ee did not attend her IME appointment which would likely have provided an accurate description of her functional status. Therefore, there is no clinical evidence that [Tillman] is unable to perform her usual job duties beyond 12/12/10.

G. The Allegedly False Denial of Light Duty Assignments

Tillman’s principal contention in this casé is that the Defendants discriminated against her on the basis of a disability by falsely representing that light duty assignments were unavailable. :

. In this regard, Tillman testified that she believed such assignments were available because: (1) on the night of December 17, 2010, Moffatt-Pender assigned her to light duty work; and (2) she recalled other workers returning from medical leave and receiving light duty work.

In particular, as one such example, the Plaintiff identified a coworker named An-sell Thompson, who was a full-time employee. However, Tillman testified that she did not know the nature of his disability or the physical restrictions placed upon him when he returned to work. Rather, she recalled only that he had been out of work'for a time due to an injury and, upon returning, performed work different than the work he typically performed.

Another .example provided by the Plaintiff was one Ed Egen. The Plaintiff claims that he went on medical leave due to an on-the-job injury to his hand. However, again, Tillman did not know any specific facts about the injury, how long he was out of work, or whether his return to work was conditioned on any physical restrictions.

A third example given was a man the Plaintiff could only identify as Bruce. As to him, the Plaintiff'did not know whether he worked in her department, what the nature and extent of his injury were, or whether he had any physical restrictions when he returned to work. The Plaintiff allegedly learned of Bruce’s situation from a union representative and her former supervisor, Tereska Flood.

Regarding what she perceived as the Defendants’ discriminatory denial of light duty assignments, Tillman testified as follows:

[T]o me it just appeared as though, again, with my relationship with John Dinkins, it appeared to me that he didn’t want me to be able to return, and there were certain things that should have been discussed that were not because he simply wasn’t interest in trying to accommodate me.

So he didn’t take the initiative to try to have a discussion with me about “Hey, maybe we can put you here,” or put me there, and they have done that for other people. So I just felt that that was discriminatory.

If their procedure or their protocol is not to have light-duty work in any capacity, why wasn’t his response to Eleanor [Moffatt-Pender] when I came in, “Send her home right now”?

Why didn’t he do that right then?

I contend, which I have been contending all along, there is light-duty work.

I contend that by my own eyesight, that I saw with my own two eyes that other people have been able to come in and do light-duty work.

I also contend that sometimes, based on the acrimonious relationship John Dinkins and I had, that he did not want me to have light-duty work, so light-duty work was not made available to me.

Of importance, besides her light duty assignment on December 17th and the allegedly comparable accounts of coworkers, described above, the Plaintiff asserts no other basis for her belief that the Defendants misrepresented the availability of light duty work.

Dinkins disputes that he falsely represented the availability of light duty assignments. He testified that there were legitimate non-discriminatory reasons for requiring Tillman to return to work at full duty or not at all. In particular, Dinkins testified as follows:

Q: [When you spoke on the phone with Moffatt-Pender on December 17, 2010] [w]hy did you say that [Tillman] has to return full duty?

A: Because in order for her — at that particular juncture anyone that was returning to work had to be able to perform the function of the job. Marlayna [Tillman] stated that she couldn’t perform the function of the job, so she was still out with restriction.

Q: When you say she couldn’t perform the functions, are you saying she couldn’t do any of the functions?

A: She couldn’t do the job required function, which is pre-staging.

Q: Right, but my question is, was she able at that point when she returned to work to do some of the function?

A: Why would we need her to do some of the function? It’s an end-to-end function.

❖ * *

A: ... I’m trying to understand what you’re saying, but if I bring you back to work, then my expectation is that you perform the entire function end to end. If you’re going to your point, say just drive a forklift, that’s not the job.

In addition, Dinkins testified about Verizon’s ability to accommodate the Plaintiffs restrictions, as follows:

Q: Did you ever consider giving her work that would allow her to do some of the functions of the job to accommodate her?

A: No. My responsibility to the department is to have the person perform the job function. If there was some sort of accommodations that would have been made, it wouldn’t be approved by me, so it wouldn’t come from me. It would come from my manager.

Q: Your manager meaning who?

A: Ruddy Reyes.

Q: Did you have any discussions with Ruddy Reyes about whether there were any accommodations that could have been given?

A: In my ... operation there’s nothing else to do but pre-staging,

Q: Right. But my question is, whether you actually talked to Ruddy Reyes about whether there were accommodations?

A: Yes, I did. There were no accommodations. Outside of pre-staging there were no accommodations. In pre-stag-ing that’s what the job function was.

In this regard, Dinkins testified that he did not have any discussions with Tillman about accommodations because Verizon “ha[s] no accommodations. The job is what it is. It requires lifting ...” Reyes testified similarly: “[P]art of their job is to lift heavy weights, push, pull heavy weights, so I don’t see where she would have a role with that.... [I]f you’re not able to do that, then you can’t perform that job of a Driver B.”

However, Dinkins also testified that, ultimately, the decision to accommodate an employee is made by MetLife, not Verizon. In particular, he testified that injured employees seeking to return to work are required to communicate their request for an accommodation to MetLife, who considers the employee’s medical information to determine whether or not an employee can perform the necessary functions of their job.

Reyes testified that, due to Tillman’s failure to coordinate with MetLife regarding a potential return to work, she never properly requested a light duty accommodation. He testified that, although he had heard that Tillman informally presented a doctor’s note restricting her lifting to objects under five pounds, he did not consider that an official request for an accommodation because' it did not comport with company procedure. This is consistent with Dinkin’s testimony that MetLife marshals injured employee’s medical information and ultimately arranges for their return to work, with or without restrictions. It is also consistent with the initial letter MetLife sent to Tillman confirming her approval for benefits, in which MetLife directed her to coordinate’ directly with them regarding her medical condition. It is further consistent with MetLife’s claim activity log, in which case workers monitored Tillman’s progress; scheduled her for medical examinations; and specifically indicated that they did not intend to communicate with Verizon regarding a possible accommodation unless and until the Plaintiff submitted to an IME.

According to Reyes, because Tillman failed to follow the established procedures for returning to work, she was never approved to do so, let alone to receive an accommodation.

Regarding the availability of light ’duty assignments in departments other than Tillman’s, Reyes testified that he did not know of any Verizon employees being transferred to fulfill a properly-made light duty restriction request.

The Pláintiff points to no evidence that her department offered light duty assignments.

H. The Plaintiffs First NYSDHS Discrimination Charge

On February 28, 2011, the Plaintiff filed a charge of disability discrimination with the New York State Division of Human Rights. In that charge, Tillman described the alleged discrimination as follows:

I suffered an on the job injury to my arms at Verizon in' December 2009. I went out on Workers Comp claim. In December 2010,’ I was cleared to return to work with restrictions by my treating physician, Dr. Robert' Hecht. My restrictions were as’ follows: No lifting anything over 5 lbs. I returned to Verizon on 12/17/10. My supervisor, John Dinkins and. Eleanor Pender-Moffitt [sic ] approved me to work on that date, allowing me to work a full shift and accommodated my restrictions. . I worked the entire shift and it was uneventful. However,, on Mon 12/20/10, as I prepared to go into work, I received a ■voice message from my supervisor John Dinkins advising me that I was not to return to work until my physician approved me to work without restrictions. I was told-that Verizon would not be accommodating my restrictions anymore. And until I received, full clearance, there would be no light duty work or accommodations made for me. I was told that the company would be placing . me back on workers comp again. I believe I am being discriminated against due to my current lifting restriction/disability, and further, am being misled by my supervisor with regard to their [sic ] being no light duty work available for me at the facility. The company is simply refusing to accommodate my disability for discriminatory reasons. The fact that I was allowed to work a full shift on light duty on Fri 12/17/10, clearly demonstrates that the company not only has available light duty work, but that I was able to perform those duties and tasks without'incident(s)....

See Ex. “R” to the Casher Decl. (emphasis in original). =

There is no evidence that either Dinkins or Reyes knew of Tillman’s first NYSDHS complaint at or about the time it was filed. In this regard, Dinkins -testified that he was unaware the Plaintiff had even filed a complaint until asked about it during his deposition in this action. ■ Reyes could not recall whether he learned about the complaint prior to Tillman being “job completed,” or whether he ever read the complaint.

On or about February 6, 2013, the NYSDHS determined, after an investigation, that probable cause existed to believe that Verizon engaged in the complained-of discriminatory conduct.

Tillman withdrew that complaint in order to commence the instant lawsuit.

I. The Plaintiffs “Job Completed” Termination

It is undisputed that Reyes, in consultation with Verizon staffing professionals, determined that Tillman should be “job completed” at the expiration of her three-year term. According to Reyes, the only consideration Verizon took into account in determining to “job complete” Tillman was that her temporary term was set to expire and they had no need to. hire her on a full-time basis.

Accordingly, in a memorandum dated October 26, 2011, one day prior to Tillman’s three-year anniversary with Verizon, a supervisor named Paul Vega, informed the Plaintiff that her services were on longer necessary and her temporary term of employment was completed. Verizon also sent the Plaintiff a notice, dated October 30, 2Ó11, regarding her right to continue the company’s health coverage following the expiration of her term.

The Plaintiff testified that she did not receive these materials until November 1 or November 2, 2011. Apparently, Tillman believes that, because she did not receive Vega’s memo prior to her three-year anniversary, her temporary term lapsed and she “became” a full-time employee.

However, Reyes testified that the lapse of a temporary employee’s" term does not automatically operate to convert that employee to a full-time worker. This is "consistent with the Plaintiffs own testimony, described above, that she does not recall ever being told that temporary employees were automatically hired on a full-time basis.

In this regard, Reyes further testified that Verizon has no obligation to provide more than a day or two of advance notice that an employee is being “job completed.” He stated that the only reason they send notice at all is to ensure that the employee does not continue to show up for work after their three-year anniversary.

Reyes testified that Tillman was not offered a full-time position because Verizon did not have a hiring need at that time. In fact, he testified that none of the other temporary employees hired at or about the same time as Tillman received full-time positions.

However, Reyes testified that approximately three to five temporary employees were re-hired after being “job completed” pursuant to a subsequent temporary employment requisition.

Apparently, the Plaintiff believes that she should have been among those rehired temporary employees. However, Tillman fails to set forth any basis for this belief. In addition, Tillman fails to point to any evidence of a vacant position for which she was qualified.

Dinkins was transferred to Verizon’s Hauppauge, New York location in October of 201Q and thus had not been working at the same location as the Plaintiff for ap-. proximately one year before she was “job completed.” .

J. The Plaintiffs Post-Termination Conduct

Following the expiration of her temporary term of employment in late-October, 2011, the Plaintiff commenced- a series of administrative proceedings, which the Court will briefly discuss.

1. The Plaintiffs Second NYSDHS Discrimination Charge

On June 27, 2012, the Plaintiff filed a second charge of disability discrimination with- the New York State Division of Human Rights.

Tillman’s second NYSDHS complaint incorporated the first complaint, but further alleged as follows:"'

On or about Nov 1st, 2011 — I was terminated w/o cause by my employer, Verizon Communications. The actual date of termination has not been verified, I can only refer to the date stamp that, was on the correspondence letter I received from the - company which, explained my right to “Cobra benefits.” The company never sent me an official termination letter explaining why I was terminated. Instead, I had to contact my local union for verification of my dismissal. I believe I was fired in retaliation to a previous discrimination complaint filed against my company alleging failure- .to accommodate a person with a disability;, as I-had sustained a work-related injury and,attempted to return to work — my supervisor, John Dinkins, allowed me to return to work for one (1) day — -then he (of his own volition) placed me back on sick leave and refused to accommodate my doctor ordered restrictions. The timing of my dismissal is also suspect, as I was slated to-become a permanent, full-time employee with Verizon on 10/27/11. The letter I received from the company hinting at my termination was dated-stamped [sic ] on 11/1/11 and 11/2/11, and the information contained within was suspiciously backdated to 10/30/11, but read that I had been terminated on 10/26/11, which is exactly one (1) day prior to when I would have been eligible to become a permanent employee with Verizon. It also should be noted that I was still out on worker’s comp (due to my supervisor John Dinkins actions) with an active, pending comp claim in process when I was dismissed without cause. This action by my supervisors was clearly a retaliatory measure to ensure that I would not be able to return to my previous position under any circumstances, and I would like to amend my original complaint to include a retaliation charge.

See Ex. “T” to the Casher Decl.

On or about December 24, 2012, the NYSDHS determined, after an investigation, that probable cause existed to believe that Verizon engaged in the additional discriminatory conduct alleged in the second complaint.

Tillman also withdrew the second complaint in order to commence the instant lawsuit.

2. The Plaintiffs Workers’ Compensation Complaint

On December 3, 2012, the Plaintiff filed a discrimination complaint with the New York State Workers’ Compensation Board. In that proceeding, Tillman claimed that from December 20, 2011, -when Dinkins advised her not to come back to work until cleared for full-duty, until November 2, 2011, when she received notice that she had been “job completed,” Verizon unlawfully prevented her from continuing to receive workers’ compensation benefits.

The matter proceeded to an administrative hearing on July 31, 2013. Although Tillman provided the Court with an 89-page transcript of the proceedings, she claims in her counterstatement pursuant to Local Civil Rule 56.1 that the Workers’ Compensation Board complaint “is not a part of this action.” Based on this representation, the Court need not address it.

However, in opposition to the instant motion,- Tillman relies upon a statement by Chris Blom, a business agent for Tillman’s union, made under oath at the Workers’ Compensation hearing. In relevant part, Blom stated that, based on his experience working with the union, he believed that Verizon could accommodate employees with light duty assignments. However, Blom qualified his statement by stating that “[e]ach department is handled differently” and “[s]ome departments don’t have the work.”

This is consistent with the undisputed fact that Moffatt-Pender, who assigned Tillman to ostensibly light duty work on the night of December 17th. oversees a department completely separate from that in which Tillman was hired. This is also consistent with Dinkins’s testimony that no light duty work is available within his particular department, as well as Reyes’s testimony that he was unaware of any Verizon employees having been transferred to a different department to fulfill a light duty restriction request.

3. The Union Grievance

The Plaintiff’s union filed a grievance against Verizon based on the events outlined above. The administrative record was not provided to the Court for review, but Tillman testified that the outcome of the grievance was that Verizon’s determination to “job complete” her upon the expiration of her temporary employment term was “upheld”

II. Procedural History

On August 2, 2013, the Plaintiff commenced the instant action asserting two causes of action.

The First Cause of Action is against Verizon only and purports to allege a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”).

The Court notes that, despite being labeled a single cause of action, the First Cause of Action contains numerous theories of relief. Due to the pleading’s draftsmanship, Tillman’s claims are not clear. However, as best as the Court can discern, the following bases for liability are asserted within the First Cause of Action:

(i) Unlawful discrimination based on a disability in violation of the ADA, NYSHRL, and NYCHRL;

(ii) Hostile work environment based on a disability in violation of the ADA, NYSHRL, and NYCHRL;

(iii) Disparate treatment based on a disability in violation of the ADA, NYSHRL, and NYCHRL;

(iv) Failure to reasonably accommodate a disability in violation of the ADA, NYSHRL, and NYCHRL;

(v) Retaliation for exercising a protected activity in the form of requesting a reasonable accommodation for a disability in violation of the ADA, NYSHRL, and NYCHRL; and

(vi) Retaliation for exercising a protected activity in the form of filing the first NYSDHS complaint in violation of the ADA, NYSHRL, and NYCHRL.

The Second Cause of Action is against Dinkins and Reyes, individually, and alleges aider and abettor liability under the NYSHRL and NYCHRL.

Issue was joined on November 15, 2013, and the parties completed discovery in January of 2015.

On February 13, 2015, the Defendants filed the instant motion seeking summary judgment dismissing the Complaint in its entirety. The Defendants’ contentions are as follows:

(i) To the extent the Plaintiff seeks relief under the NYCHRL, such claims fail as a matter of law because the complained-of conduct did not occur within the boundaries of New York City;

(ii) The First Cause of Action, to the extent it asserts an unlawful discrimination claim under the ADA and NYSHRL, should be dismissed because the Plaintiff cannot establish a prima fade case;

(iii) The First Cause of Action, to the extent it asserts an unlawful retaliation claim under the ADA and NYSHRL, should be dismissed because the Plaintiff cannot establish a prima fade case;

(iv) The First Cause of Action, to the extent it asserts a failure to reasonably accommodate, should be dismissed because Verizon did, in fact, accommodate the Plaintiff;

(v) The First Cause of Action, to the extent it asserts a hostile work environment claim under the ADA and NYSHRL, should be dismissed because the Plaintiff cannot establish a prima fade case; and

(vi) The Second Cause of Action based in aiding and abetting should be dismissed because (a) the Plaintiff cannot establish a triable issue of fact as ,to the underlying discriminatory conduct alleged to have, been aided and. abetted, and (b) there is no record evidence that Dinkins and Reyes participated in discriminatory conduct.

III. Discussion

A. The Legal Standards

1. Summary Judgment under Fed. R.Civ.P. 56

Under Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56(a), “[t]he court shall grant summary judgment if the movant-shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “The Court ‘must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party.’” Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.8d 132, 137 (2d Cir.1998) (quoting Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 26 (2d Cir.1988)).

“ ‘[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the- truth of the matter but to-determine whether there is a genuine issue for-trial.’” Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 173-74 (2d Cir.2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202. (1986)).

“ ‘[E]ven in the fact-intensive context of discrimination cases,’ ‘[i]t is now beyond cavil that summary judgment may be appropriate.’” EEOC v. Bloomberg, L.P., 967 F.Supp.2d 816, 830 (S.D.N.Y.2013) (quoting Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001), cert. denied, 534 U.S. 993, 122 S.Ct. 460, 151 L.Ed.2d 378 (2001)). “Accordingly, a plaintiff alleging .discrimination claims ‘cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts ... or defeat the motion through mere speculation or conjecture.’ ” Id. at 831 (quoting Jones v. Hirschfeld, 348 F.Supp.2d 50, 59 (S.D.N.Y.2004)).

2. The McDonnell Douglas Burden-Shifting Framework

Claims under the ADA and NYSHRL are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973): See Brown v. Northrop Grumman Corp., 12-cv-1488, 2014 WL 4175795, at *4-*5, 2014 U.S. Dist. LEXIS 116188, at.*12-*13 (E.D.N.Y. Aug. 19, 2014). This test has three steps:

(1) the plaintiff must establish a prima facie case of discrimination; (2) if the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the employment action; and (3) the plaintiff then bears the ultimate burden of persuasion to prove that the defendants intentionally discriminated against him.

Adams v. Master Carvers of Jamestown, Ltd., 91 Fed.Appx. 718, 720 (2d Cir.2004).

As the Supreme Court has advised:

The ultimate question is whether the employer intentionally discrimi-nated_ In other words, ‘it is not enough ... to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional' discrimination.’ ... Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors.' Those include the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s ease and that properly may be considered on a motion for judgment as a matter of law.

Viruet v. Citizen Advice Bureau, 01-cv-4595, 2002 WL 1880731, at *12-13, 2002 U.S. Dist. LEXIS 15045, at *40-*42 (S.D.N.Y. Aug. 27, 2002) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)) (brackets in original).

3. The Standard for Claims under the NYCHRL

“ ‘[Cjourts must analyze NYCHRL claims separately and independently from any federal and state law claims,’ and ‘even if the challenged conduct is not actionable under federal and state law, federal courts must consider separately whether it is actionable under the broader New York City standards.’ ” Talwar v. Staten Island Univ. Hosp., 610 Fed.Appx. 28, 31 (2d Cir.2015) (Summary Order) (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.2013)).

Discrimination claims brought under the NYCHRL are analyzed, like their federal and state counterparts, using the McDonnell Douglas burden-shifting framework. See Varughese v. Mount Sinai Med. Ctr., 12-cv-8812, 2015 U.S. Dist. LEXIS 43758, at *101-*102 (Mar. 7, 2015). However, courts are required to “con-stru[e] the NYCHRL’s provisions ‘broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.’ ” Mihalik, 715 F.3d at 109 (quoting Albunio v. City of New York, 16 N.Y.3d 472, 477-78, 922 N.Y.S.2d 244, 947 N.E.2d 135 (2011)).

B. As to the Plaintiffs First Cause of Action Based on Unlawful Disability Discrimination Under the ADA

As noted above, the Court first considers the elements of Tillman’s prima facie claim, before turning to the next step of the McDonnell Douglas burden-shifting scheme. ,

“In order to establish a prima facie case of disability discrimination under the ADA, the plaintiff must show that: (1) the defendants are subject to the ADA; (2) [s]he is disabled within the meaning of the ADA; (3) [s]he can perform the essential functions of [her] job with or without a reasonable accommodation; and (4) [s]he was subject to an adverse employment action because of [her] disability.” Adams, 91 Fed.Appx. at 720 (citing Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 149-50 (2d Cir.1998)).

As to the first element, the parties agree that Verizon is subject to the provisions of the ADA. •

For purposes of this analysis, the Court assumes, without deciding, that questions of fact sufficient to survive summary judgment exist concerning whether: (1) Tillman’s bilateral tennis elbow constituted a sufficiently severe restriction on her ability to perform the major life activities of lifting and working to count as a disability under the statute; and (2) Tillman could have performed the essential functions of her job with or without a reasonable accommodation.

However, construing the evidence with liberality in Tillman’s favor, no. rational juror could conclude that she suffered an adverse employment action based on her disability.

“In this circuit, an adverse employment action is a ‘materially adverse change in the ■ terms and conditions of employment.’ ” Islamic Soc’y of Fire Dep’t Pers. v. City of New York, 205 F.Supp.2d 75, 83 (E.D.N.Y.2002) (quoting Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 85 (2d Cir.2001)). “Such a change ‘might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indi-nes ... unique to a particular situation.’ ” Id. (quoting Weeks, 273 F.3d at 85).

Here, the alleged adverse employment action identified by Tillman is her “termination, which occurred when [her] temporary employment was ended and was not extended or made permanent.” In the Court’s view, such a contention fails as a matter of law.

The uncontroverted evidence establishes that Tillman was hired for a three-year term. Apparently, this is not unusual for Verizon, which utilizes temporary employees to meet short-term labor needs. The record makes clear that Tillman had no reasonable expectation that her employment would extend beyond three years. Her written job offer specifically identified her position as a temporary employee and incorporated the CBA, which defines a temporary employee as one employed for not more than three years. In addition, Tillman testified that, although she believed she would have an opportunity to become a full-time employee upon expiration of her temporary term, she was never told that such a conversion would happen automatically; that she did not know whether it would depend on Verizon’s hiring needs at the time; and that she did not know whether she would have to specifically apply for full-time employment. Thus, the expiration of Tillman’s predetermined temporary term cannot legitimately constitute an adverse employment action for purposes of the federal discrimination law. Indeed, discontinuing a temporary worker’s employment at the expiration of a fixed three-year period cannot “materially [and] adversely] change ... the terms and conditions of [that] employment.” In this Court’s view, such a result is self-evident inasmuch as it conforms exactly to the terms of the employment offer that Tillman accepted.

Tillman’s separate contention that she suffered an adverse employment action when Verizon failed to offer her full-time employment is similarly unavailing. Initially, it contradicts her own Complaint, which alleges that “[o]n October 27, 2011, [she] became a permanent employee of Verizon by virtue of the fact that her temporary work assignment had” lapsed. Compl. ¶ 24.

Nevertheless, the undisputed record evidence establishes that the expiration of a temporary employee’s term does not operate to convert her to a full-time employee. Tillman herself testified that she had no reason to believe that she would automatically become a full-time employee at the expiration of her term. - Rather, Tillman believed that full-time employment opportunities for temporary workers were merit-based and’ may require her to apply for a full-time position. She also did not know whether such an opportunity depended on Verizon’s hiring needs. Reyes confirmed that full-time hiring opportunities did, in fact, depend on the company’s hiring needs at the time, and testified that such decisions were discretionary, with Verizon reserving the exclusive right determine that the employee’s services are no longer needed at the end of a three-year term.

It is clear that Verizon’s offer of employment prominently notified Tillman that she was being hired as an at-will employee and could be terminated for any reason or no reason at all.

In this case, Tillman failed to materially dispute that her three-year temporary term ended; that Verizon had no need to hire her on a full-time basis; or that Verizon exercised its discretion to “job complete” her, consistent with the terms of her employment and the governing CBA. She also fails to present any evidence of a vacant position for which she was qualified, but was not selected.

Of note, Tillman does not dispute that Verizon also “job completed” the other temporary employees with whom she worked due to the fact that Verizon did not have enough work for them.

Relatedly, there is no evidence that Verizon’s decision to “job complete” Tillman was causally connected to her disability or otherwise motivated by discriminatory animus. See Mines v. City of New York/ DHS, 11-cv-7886, 2013 WL 5904067, at *9, 2018 U.S. Dist. LEXIS 157782, at *25-*26 (S.D.N.Y. Nov. 4, 2013) (“Under the most lenient standard, for a disability discrimination claim under the ADA, a plaintiff must demonstrate that her disability was, in the very least, a ‘motivating factor’ for the adverse employment action, if not a ‘but-for’ cause for such an action” (quoting Parker v. Columbia Pictures, Indus., 204 F.3d 326, 336-37 (2d Cir.2000))).

In this regard, the only evidence in the record is that Tillman’s three-year term expired, and she was not offered a full-time position because Verizon did not have a full-time hiring need at that time. Tillman points to nothing in the record to materially dispute this important fact.

Accordingly, the Plaintiff cannot establish a prima facie claim based on discrimination in violation of the ADA, and the Court need not progress further under the McDonnell Douglas burden-shifting scheme. The Defendants’ motion for summary judgment, to the extent it seeks to dismiss the First Cause of Action on the basis of unlawful disability discrimination under the ADA, is granted.

C. As to the Plaintiffs First Cause of Action Based on a Hostile Work Environment Under the ADA

The Defendants contend that summary judgment is warranted as to the First Cause of Action, to the extent it seeks dismissal of the Plaintiffs claim based on a hostile work environment in violation of the ADA. The Plaintiff fails to address this point in"opposition to the instant motion.

Therefore, the Court deems that aspect of the First Cause of Action abandoned, and the Defendants’ motion for summary judgment, to the extent it seeks to dismiss the Plaintiffs claim based on a hostile work environment under the ADA, is granted. See Avola v. Louisiana-Pacific Corp., 991 F.Supp.2d 381, 390 (E.D.N.Y.2013) (granting summary judgment on five claims not directly opposed in the plaintiffs opposition papers) (citing Struthers v. City of N.Y., 12-cv-242, 2013 WL 2390721, at *17-*18, 2013 U.S. Dist. LEXIS 76916, at *62-*63 (E.D.N.Y. May 31, 2013)); Robinson v. Roosevelt Union Free Sch. Dist., 10-cv-834, 2012 WL. 1980410, at *6-*7, 2012 U.S. Dist. LEXIS 76524, at *18 (E.D.N.Y. May 31, 2012); Santiago v. City of N.Y., 05-CV-3668, 2009 WL 935720, at *11 n. 20, 2009 U.S. Dist. LEXIS 30371, at *37-*38 n. 20 (E.D.N.Y. Mar. 31, 2009); Williams v. British Airways, PLC, 04-cv-471, 06-CV-5085, 2007 WL 2907426, at *13, 2007 U.S. Dist. LEXIS 73997, at *47-*48 (E.D.N.Y. Sept. 27, 2007); Ostroski v. Town of Southold, 443 F.Supp.2d 325, 340 (E.D.N.Y.2006); DeVito v. Barrant, 03-cv-1927, 2005 WL 2033722, at *10, 2005 U.S. Dist. LEXIS 22444, at *33 (E.D.N.Y. Aug. 23, 2005); Taylor v. City of N.Y., 269 F.Supp.2d 68, 75 (E.D.N.Y.2003) (“Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way”).

D. As to the Plaintiffs First Cause of Action Based on Disparate Treatment under the ADA

As noted above, Tillman’s First Cause of Action appears to incorporate a claim for disparate treatment based on a disability-in violation of the ADA. In this regard, Tillman, asserts that she was treated differently than other similarly-situated, employees because Dinkins occasionally assigned her a heavier workload and, while other similarly-situated temporary employees were re-hired after being “job completed,’’.she was not. _

. The Defendants do not directly address this point in their moving brief.. However, the Plaintiff vaguely contends in its opposition brief that, with respect to disparate treatment: •

[S]ome of the other temporary Driver B employees who were hired at the same time as Plaintiff but who were ‘job completed’ before Plaintiff were rehired by Defendants. Tillman, in contrast, was not offered to be rehired by Defendants.

Even though the Complaint failed to clearly delineate a claim based upon disparate treatment, Tillman raised the issue on summary judgment, and the Court, in its discretion, will address it here. See Fed. R.CivJP. 56(f)(I)-(2) (authorizing the Court to grant summary judgment for' a nonmov-ant or on grounds not raised by a party, if the parties have notice and a reasonable chance to respond).

“One form of circumstantial evidence probative of discrimination is evidence ‘showing that the employer subjected [the Plaintiff] to disparate treatment, that is, treated him' less favorably than a similarly situated employee outside of his protected group.’ ” Holleman v. Art Crating Inc., 12-cv-2719, 2014 WL 4907732, at *30, 2014 U.S. Dist. LEXIS 139916, at *96 (E.D.N.Y. Sept. 30, 2014) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000)). The disparate treatment theory is a method of establishing a prima facie case of discrimination and the burden of establishing a persuasive comparison lies with the Plaintiff. See McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir.2001),

In this case, again assuming that Tillman’s bilateral tennis elbow is a disability under the ADA, she has presented no evidence that Dinkins assigned her more work than her coworkers because she is disabled as she now asserts. On the contrary, Tillman testified that she does not know what motivated Dinkins to assign her a heavier workload and conclusorily attributed his behavior to their “acrimonious relationship” and the fact that they did not “see eye to eye on a lot of things.” Such allegations do not present a discriminatory motive.

Similarly, the Plaintiff states that she “was never re-called” for a job after being “job completed” and “was never given the same opportunity as the other workers, to come back, or to h