Defendants JP Morgan Chase & Company, JP Morgan Securities, Inc. (together, Chase), and Moctar Fall(Fall) move, pursuant to CPLR 3212 (a), for summary judgment dismissing the complaint. The complaint alleges that, in violation of the New York State Human Rights Law (NYSHRL), Executive Law § 290, et seq., and the New York City Human Rights Law (NYCHRL), Administrative Code of the City of New York (Administrative Code) § 8-101, et seq., Chase failed to offer plaintiff a reasonable accommodation for his disability and terminated him because of his disability, and that Fall was responsible for Chase's failure to provide plaintiff with a reasonable accommodation and aided and abetted Chase in that failure; and that Fall made the determination to terminate plaintiff, and aided and abetted Chase in that termination.

Plaintiff commenced employment with then-Chase Manhattan Bank in 1999. His first year consisted of three four-month rotations, in each of which he worked with different financial products. In August 1999, during his third rotation, in which he worked on debt financing in Latin America, he was invited to remain, as an Associate, with the asset-backed securities group, of which non-party Marc Tuttle (Tuttle) was the managing director. On or about December 31, 2000, the Chase Manhattan Corporation merged with J.P. Morgan & Company, Inc., the former parent of defendant J.P. Morgan Securities, Inc. In late 2001, or early 2002, Tuttle's structured finance group, including plaintiff, began reporting to Fall who was in charge of debt capital markets for Latin America. At that time, Fall's group reported to the heads of Chase's Investment Bank. In the first quarter of 2002, plaintiff's work station was moved to the trading floor that was under Fall's leadership. In April 2002, plaintiff suffered a back injury at his home, resulting in pain whenever he sat or stood. He returned to work, however, and despite his pain, continued to work with no noted diminution in his productivity. By June or July 2002, as a result of attrition, Tuttle's group consisted solely of himself, plaintiff, and an administrative assistant, non-party Andrea D'Alessio (D'Alessio). By letter dated October 17, 2002, plaintiff was advised that his position would be eliminated in 60 days and that he would, thereupon, be terminated.

In the meantime, plaintiff, who had been unable to alleviate his pain, except by lying flat on his back, had decided to undergo an epidural injection of cortisone. The injection, which was administered on October 17, 2002, significantly worsened plaintiff's condition, and on October 28, 2002, plaintiff called Chase's human resources department seeking to obtain a retroactive disability leave of absence. On October 31, 2002, plaintiff obtained a letter from his doctor [*2]certifying that, as of October 17th, plaintiff was not released to work at any occupation. On November 5, 2002, Tuttle called Chase's human resources department to confirm plaintiff's condition and to request that plaintiff be placed on short-term disability. Chase, thereupon, placed plaintiff on a disability leave, effective October 17, 2002. At some time prior to July 17, 2003, plaintiff's doctor released plaintiff to work full time. Chase, then, reinstated his termination notice, providing for plaintiff's employment to end on September 4, 2003. On August 12, 2003, plaintiff, who had sought work outside of Chase, began work as an associate director at another banking institution.

Discrimination

In order to make a prima facie case of disability discrimination, a plaintiff must show that he or she was disabled, and that he or she suffered an adverse employment action either because of that disability (State Div. of Human Rights v Xerox Corp., 65 NY2d 213 [1985]), or because of behavior that was caused by the disability. Matter of McEniry v Landi, 84 NY2d 554 (1994); Pimentel v Citibank, N.A., 29 AD3d 141 (1st Dept 2006). Executive Law § 292 (21) defines "disability" as:

(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function ... provided, however, that ... the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

Administrative Code § 8-102 (16) (a) defines "disability" as "any physical, medical, mental or psychological impairment, or a

history of such impairment." It is undisputed that plaintiff suffered from severe back pain at the time that the decision to terminate him was made. However, even assuming that plaintiff's back pain, prior to the epidural injection, constituted a disability within the meaning of Executive Law § 292 (21) and Administrative Code § 8-102 (16) (a), the undisputed evidence in the record shows that Chase did not terminate plaintiff because of that pain, or because of any behavior caused by it.

It is undisputed that plaintiff was terminated in the course of a large-scale reduction in force that Chase implemented in October 2002, in which approximately 2,000 positions were eliminated, and that that reduction followed an earlier one, which had been effected in the spring of 2002. Cynthia Vega (Vega), who was the junior resource manager for Latin America, that is, the manager of associates and analysts working on Chase deals with Latin American clients, testified at her deposition that, in September 2002, she and the other junior resource managers were instructed to convene meetings of the group heads for the various geographical areas, and to rank all associates and analysts, by class, using the end-year performance evaluations that had been done for 2001 and the mid-year evaluations from the summer of 2002. Plaintiff, whose work had been highly evaluated both times, infers that his ultimate ranking at the bottom of the third of three tiers, and his subsequent termination, could only have resulted from the consequences of his back injury. However, Ms. Vega testified that the associates who were ranked at the meetings of the group heads had already survived the preceding reduction in force and were all, as she put it, "A-number-one individuals" (Giansello Affirm., Exh. F, at 92), but that, knowing that further cuts were coming, which, they later were told needed to amount to 50% of the associates who had commenced their employment in 1998 or 1999, the group heads needed to rank the associates comparatively. Consequently, rankings were based not only on the quality of an associate's technical proficiency in working on deals, but also on the revenue contributions of each associate's work, and on the likelihood that the associate would be offered a position as vice president in a shrinking company. Plaintiff would have been eligible to be considered for a vice presidency in October 2002.

The Latin American committee consisted of Vega, the Latin American group heads, including Fall, and one or two persons from Chase's human resources department. Vega testified [*3]that Fall had stated at one of the meetings that plaintiff was of major importance to the structured finance team, and that his ranking should be raised, but that the committee had disagreed and, indeed, had questioned the continued viability of structured finance, given its relatively low production of revenue. Fall testified at his deposition that the deals on which plaintiff and Tuttle had worked in 2001 had resulted in revenues of less than $1 million, in comparison to the $72 million brought in by the entire debt capital market group of which he was the head. Plaintiff testified at his deposition that he thought that the deals on which he had worked had brought in between $3 and $4 million. Vega further testified that no one at the committee meetings mentioned plaintiff's back problem, and indeed, that she did not become aware of it until the commencement of this action. Fall also testified at his deposition that he had argued in favor of retaining plaintiff, and that no one mentioned plaintiff's back pain.

In sum, defendants have submitted undisputed evidence that Fall, the only person involved in the deliberations that led to plaintiff's termination to have been aware that plaintiff suffered from back pain, did not mention plaintiff's problem at the deliberations, and that he had sought to have plaintiff retained.

Plaintiff testified at his deposition that he had come to believe that Fall was instrumental in bringing about his termination on the basis of remarks that Tuttle had made. Tuttle, however, testified that he had no direct knowledge of what had happened at the meetings that Vega had convened. Accordingly, there are no evidentiary facts in the record from which a jury could reasonably infer that plaintiff's termination was caused, even in part, by his back injury, or by any behavior on his part resulting therefrom.

Failure To Accommodate

The NYSHRL provides that it is unlawful for an employer "to refuse to provide reasonable accommodations to the known disabilities of an employee ... in connection with a job or occupation sought or held," (Executive Law § 296 [3] [a] (emphasis added). The Appellate Division, First Department, has held that, under the NYSHRL, an employer's duty to provide an accommodation does not arise absent the employee's request for one. Pimentel v Citibank, N.A., 29 AD3d 141, supra; Pembroke v New York State Office of Court Admin., 306 AD2d 185 (1st Dept 2003). The NYCHRL, by contrast, affirmatively requires that "any person prohibited by the provisions of this section from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job." Administrative Code § 8-107 (15) (a) (emphasis added); see also McCarthy v Philips Electronics North America Corp., Index No. 112522/03 (Sup Ct, NY County 2007).

One of Chase's on-line policies that was available to all Chase employees provides that:

[i]f you have a protected disability and need an accommodation to perform your essential job functions, you should contact your human resources generalist or your employee relations representative. You may then be asked to provide medical certification to Health Services. This documentation will be kept confidential and apart from your personnel records. Your human resources generalist or employee relations representative will work together with you, your manager, Health Service professionals and possibly other helpful resources to ensure that a reasonable accommodation is provided if it does not impose an undue hardship.

Plaintiff complains that some of the equipment that he requested was not found, and that some was found only with a delay of one or more weeks. He also complains about having worked on the cardboard box that he himself had placed on his desk. He testified, however, that he kept trying to get different things, not knowing what would help, and that, in fact, the only thing that he could do to alleviate his pain was to lie down, flat on his back. In these circumstances, plaintiff cannot show that Chase refused to provide plaintiff with an accommodation, in violation of the NYSHRL.

Nor can he show a violation of the NYCHRL. While under that statute an employer has a duty to offer an accommodation to a disabled employee, even absent a request for one, such a duty cannot arise if the employer is unaware of the disability. Here, plaintiff cannot show that anyone other than Tuttle and D'Alessio knew that he was in severe pain, and he agreed with Tuttle's suggestion to keep the matter between them, D'Alessio, and Michael Horan, who was responsible for obtaining furniture and equipment for the employees in Tuttle's work area. Chase's human resources department knew nothing of plaintiff's condition, prior to the time that he requested the retroactive disability leave, and Fall testified at his deposition that, while he knew that plaintiff had a back ache, he thought that it was temporary and did not know that it was severe, and that he had told Tuttle to get plaintiff whatever he needed. Consequently, plaintiff cannot contend that the human resources department, which might have suggested a workable accommodation and an alternative to the box on his desk, had it known of his plight, should have done anything for him; he cannot contend that Fall, who might have contacted the human services department on plaintiff's behalf, should have done so; and he does not allege that Tuttle should have done more than he did.

Accordingly, it is hereby

ORDERED that the motion for summary judgment is granted and the complaint is dismissed with costs and disbursements as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: September 21, 2007

ENTER:

____________________________

Carol Robinson Edmead,J.S.C.

The within motion is decided in accordance with the accomapnying Memorandum Decision. It is hereby

ORDERED that the motion for summary judgment is granted and the complaint is dismissed with costs and disbursements as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that counsel for defendant JP Morgan Chase & Company shall serve a copy of this Order with Notice of Entry within twenty days of entry on all counsel.