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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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NANCY DENARDI,

Plaintiff, OPINION

-against- 07 Civ. 5794 (MGC)

DRA IMAGING, P.C. and IMAGING SUPPORT

SERVICES, LLC,

Defendants.

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APPEARANCES:

SCHWARTZ & PERRY, LLP

Attorneys for Plaintiff

295 Madison Avenue

New York, New York 10017

By: Davida S. Perry, Esq.

Brian Heller, Esq.

KEANE & BEANE, P.C.

Attorneys for Defendant

445 Hamilton Avenue, 15 Floor th

White Plains, New York 10601

By: Stephanie L. Burns, Esq.

Lance H. Klein, Esq.

Cedarbaum, J.

Nancy DeNardi sues DRA Imaging P.C. (“DRA”) and Imaging

Support Services, LLC (“ISS”) pursuant to Section 12112(a) of

Title I of the Americans with Disabilities Act (“ADA”) and

Chapter 18, Article 15 of New York Executive Law Section

296(1)(a) (“New York Human Rights Law”) for terminating her

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because of an erroneous perception that she was disabled. 

Defendants move for summary judgment dismissing the complaint in

its entirety. Because DeNardi provides sufficient evidence to

make out a prima facie case of discrimination and to raise a

genuine issue of material fact as to whether defendants’ reason

for her termination is pretextual, defendants’ motion for summary

judgment is denied.

BACKGROUND

DeNardi began her employment in September 1999 in the ISS

billing department. The parties dispute whether it was only ISS

or both defendants DRA and ISS who employed her. DRA, which was

organized as a New York professional corporation in 1989, is in

the business of rendering professional radiology services. ISS

is a New York limited liability company that was formed in July

of 1996 and is comprised of two members, DRA and Vassar Brothers

Hospital. ISS is in the business of providing management,

facilities and equipment to entities engaged in the practice of

medicine. According to the operating agreement signed by DRA and

Vassar Brothers, ISS is run by an “operating committee” that

consists of four members, two appointed by DRA and two appointed

by Vassar Brothers. 

At the time of ISS’s formation in July 1996, ISS and DRA

entered into an agreement under which, for specified

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compensation, ISS would provide management, billing,

transcription and equipment leasing services to DRA. Mark Newton

was initially hired by ISS as its chief financial officer

(“CFO”). Joseph Chiseri was initially hired by ISS to be its

chief administrative officer (“CAO”). In 2004, Newton and

Chiseri’s employment contracts were assigned from ISS to DRA,

such that Newton became the CFO of DRA and and Chiseri the CAO of

DRA. However, the assignment included the proviso that ISS would

continue to receive personal services from Newton and Chiseri

consisting of hiring, firing and disciplining ISS personnel and

supervising the day to day operations of ISS. DRA and ISS also

operate out of the same facility.

Throughout her employment in the ISS billing department,

DeNardi received pay checks and W-2 forms from ISS. However,

DeNardi’s business card and security identification card both

read “DRA Imaging, P.C.” In addition, DeNardi’s health and life

insurance were provided under the group name “DRA.” Some of the

employment forms signed by DeNardi, including an employment

application and a confidentiality statement, were entitled “DRA

Imaging, P.C./Imaging Support Services, LLC.” The name “DRA

Imaging, P.C./Imaging Support Services, LLC” was also printed on

a new employee benefit checklist that DeNardi completed on her

first day of work as well as the Employee Handbook she was given. 

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During her employment, DeNardi advanced from insurance

representative to insurance representative lead to billing

department lead and her salary increased from $9.75 to $18.50 per

hour. Her annual performance reviews rate all aspects of her

work as “very good” or “outstanding.” Heather DeNardi,

plaintiff’s daughter, was hired as a part time insurance agent by

ISS in September of 2004. 

In October of 2005, DeNardi was diagnosed with colon cancer.

She was hospitalized and underwent surgery. As a result, she was

absent from work from October through December of 2005. When

she returned to work, she was absent for approximately two to

four hours on Tuesdays and approximately half an hour to one hour

on Thursdays for medical procedures in connection with

chemotherapy treatment. She also advised her supervisor,

Virginia Barkyani, that there was a small possibility that she

would need to undergo further surgery.

DeNardi testified at her deposition that her relationship

with Barkyani changed when she returned to work in December of

2005. According to DeNardi, Barkyani stopped spending time with

her on breaks, gave her less challenging assignments, excluded

her from meetings with her co-workers, and removed work from her

desk without her knowledge and returned it with post-it notes

giving her instructions on how to perform certain tasks. DeNardi

also testified that on one occasion in January of 2006, Barkyani

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accused her of forgetting to do something and asked her if the

“chemo was affecting [her] brain.” In addition, she testified

that after she returned from her cancer surgery, Mark Newton, who

had responsibility for hiring, firing and disciplining employees

of ISS, began ignoring her in the hallways of the office.

Sometime in February or early March of 2006, Barkyani

assigned DeNardi to the operation of a new computer system, the

Cerner Interface, which DRA and ISS had recently installed for

billing and appointment scheduling. DeNardi considered the new

assignment to be a demotion because she found the work to be less

challenging than her prior assignments. Although DeNardi’s

responsibilities changed at this time, her hourly wage remained

the same. 

On May 5, 2006, approximately five months after DeNardi

returned to work, Heather DeNardi forgot to clock out as she was

leaving the office. Upon realizing that she had forgotten to

clock out, Heather called her mother, who proceeded to clock her

out. The parties dispute whether employees were instructed that

they were the only ones who should clock themselves in and out. 

DeNardi affirms that clocking other employees in and out was an

“on-going and well-accepted course of conduct at DRA” and that

DRA never instructed its employees to keep their passwords

confidential. She also affirms that fellow employees who arrived

late to work would often call out for someone to punch them in as

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they were rushing to get to their desk. DeNardi says she clocked

in one of her coworkers in this manner almost every day. On one

occasion, even her supervisor, Barkyani, called DeNardi and asked

DeNardi to clock her out because she had forgotten to do so. DRA

disputes that this was an accepted course of conduct. DRA has

produced a “Security and Confidentiality Agreement” signed by

DeNardi on April 1, 2003, in which DeNardi explicitly agreed not

to “log on to any of the Company’s computer systems that

currently exist or may exist in the future using a password other

than my own.” 

Later in the day on May 5, 2006, Barkyani spoke to DeNardi

about the fact that she had clocked out her daughter. The

parties dispute what was said during this conversation. Barkyani

testified at her deposition that when she asked DeNardi whether

she had clocked out her daughter, DeNardi initially denied doing

so but after further discussion, admitted to it. DeNardi, on the

other hand, denies that she ever lied. Rather, according to

DeNardi’s testimony, she readily admitted to clocking out her

daughter. 

After this conversation took place on May 5, 2006, Barkyani

met with Mark Newton and reported what was said. Based on his

conversation with Barkyani, Newton made the decision to terminate

DeNardi.

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On May 8, 2006, Newton and Barkyani met with DeNardi to

inform her that she was being terminated. Also on May 8, 2006,

Newton sent his superiors an email reporting that he had fired

DeNardi and that “[t]he severe consequence of termination was

based on the lying even more than the stealing.” Barkyani

prepared a typed statement for the Human Resources Department

dated May 9, 2006, stating that DeNardi was “terminated for

falsifying time records for another employee.” 

DeNardi affirms that she did not lie and that this statement

is a pretext for discrimination because of Barkyani’s mistaken

perception that her cancer treatment disabled her. According to

DeNardi, defendants fired her because they regarded her as

substantially limited in the major life activity of working.

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DISCUSSION

Summary judgment should be granted “if the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(c). A genuine issue of material fact exists when

the evidence is “such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986). In deciding whether a genuine issue of fact exists, the

court must “construe the facts in the light most favorable to the

non-moving party and must resolve all ambiguities and draw all

reasonable inferences against the movant.” Dallas Aerospace,

Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003)(citing

Anderson, 477 U.S. at 255). Summary judgment is appropriate when

“the nonmoving party fail[s] to make a sufficient showing on an

essential element of [its] case with respect to which [it] has

the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “[A] plaintiff

must provide more than conclusory allegations to resist a motion

for summary judgment.” Holcomb v. Iona Coll., 521 F.3d 130, 137

(2d Cir. 2008)(citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.

1985)). 

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I. Discrimination under the ADA

In a disability discrimination case, courts apply the threestep burden-shifting analysis established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed.

2d 668 (1973). Under this analysis, the plaintiff bears the

initial burden of establishing a prima facie case of

discrimination. Id. at 802. The burden of production then

shifts to the defendant to articulate “some legitimate, nondiscriminatory reason” for its action. Id. “If such a reason is

provided, plaintiff may no longer rely on the presumption raised

by the prima facie case, but may still prevail by showing,

without the benefit of the presumption, that the employer’s

determination was in fact the result of ... discrimination.”

Holcomb, 521 F.3d at 138. Plaintiff need only show that

discrimination was “at least one of the motivating factors” in

the employer’s decision. Id. (internal citations omitted). “The

ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff.” Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed.

2d 207 (1981). At the summary judgment stage, this means that

the plaintiff “must establish a genuine issue of material fact

either through direct, statistical or circumstantial evidence as

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to whether the employer’s reason for discharging her is false and

as to whether it is more likely that a discriminatory reason

motivated the employer to make the adverse employment decision.” 

Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223

(2d Cir. 1994).

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DeNardi argues that she has provided sufficient evidence to

make out a prima facie case of perceived disability

discrimination under the ADA. To establish a prima facie case, 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 is qualified to perform the essential functions of the

position with or without reasonable accommodation; and (4) she

suffered an adverse employment action because of her disability. 

Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir.

2001)(citations omitted). There is no dispute that DeNardi can

meet elements 1 and 3 of her prima facie case. The only question

presented by this motion is whether DeNardi has provided

sufficient evidence of elements 2 and 4. 

The ADA defines “disability” as “a physical or mental

impairment that substantially limits one or more ... major life

activity” or “being regarded as having such an impairment.” 42

U.S.C. § 12102(2). An employee can be regarded as disabled under

the statute if: 1) a covered entity mistakenly believes that a

person has a physical impairment that substantially limits one or

more major life activities, or (2) a covered entity mistakenly

believes that an actual, non-limiting impairment substantially

limits one or more major life activities." Sutton v. United Air

Lines, 527 U.S. 471, 489 (1999). In DeNardi’s case, she alleges

that ISS/DRA incorrectly regarded her as having a mental

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impairment caused by her cancer treatment that substantially

limits her in the major life activity of working. 

As to element four, DeNardi need only show that she was

terminated under circumstances giving rise to an inference of

discriminatory intent. Debidat v. Marriott Int'l, Inc., 580

F.Supp.2d 300, 305 (S.D.N.Y. 2008)(citing Holcomb, 521 F.3d at

138). The prima facie case raises an inference of discrimination

only because it is presumed that the adverse action, if otherwise

unexplained, is more likely than not based on the consideration

of impermissible factors. Debidat, 580 F.Supp.2d at 305

(citations ommitted).

II. Plaintiff’s Prima Facie Case

A. There is Sufficient Evidence for a Reasonable Jury to

Conclude that ISS/DRA Regarded DeNardi as Disabled

Drawing all inferences in favor of DeNardi, she has

presented sufficient evidence to show that DRA/ISS regarded her

as substantially limited in the major life activity of working.

According to DeNardi’s testimony, on one occasion after her

return to work, Barkyani accused her of forgetting to do

something and asked her if the “chemo was affecting [her] brain.” 

This statement indicates that defendants formed an erroneous

belief that DeNardi would be unable to perform as she has

previously done because of her chemotherapy treatment. 

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In addition, according to DeNardi, Barkyani treated her

differently upon her return to work from cancer treatment by

excluding her from meetings and taking work away from her. 

DeNardi was also reassigned to the Cerner Interface, which she

viewed as a type of demotion. These actions also suggest that

defendants questioned DeNardi’s ability to work after her

surgery. 

Finally, DeNardi testified that Barkyani began excluding her

from social gatherings after her cancer treatment and that Mark

Newton, the manager with responsibility for hiring and firing

decisions, began ignoring her in the hallways. If believed, this

testimony is illustrative of a significant change in the way

defendants treated DeNardi after her cancer treatment.

Viewed in a light most favorable to DeNardi, this evidence

is sufficient for a reasonable jury to find that defendants

believed she was significantly restricted in her ability to work. 

B. There is Sufficient Evidence that DeNardi Was Terminated

Because She Was Regarded as Disabled

DeNardi has also proffered sufficient admissible evidence to

show that she was terminated because her employer regarded her as

unable to perform a broad range of jobs, meeting the fourth

element of her prima facie case. DeNardi was an employee of

DRA/ISS for six years before she took a two month leave of

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absence to be treated for cancer. DeNardi’s annual performance

reviews consistently rated all aspects of her work as “very good”

or “outstanding.” Yet five months after her return from cancer

treatment, DeNardi was fired. 

Defendants argue that DeNardi was terminated because she

clocked out her daughter. Barkyani initially confronted DeNardi

about clocking out Heather and then reported her version of

DeNardi’s behavior to Mark Newton. Based entirely on Barkyani’s

report, Newton proceeded to terminate DeNardi.

Viewing all of the evidence in a light most favorable to

DeNardi, the circumstances surrounding DeNardi’s termination,

coupled with the change in the way defendants treated her and her

changed job responsibilities, are evidence supporting an

inference that Newton, in conjunction with Barkyani, decided to

terminate her because of an incorrect belief that she was

substantially limited in her ability to work. 

III. A Genuine Dispute of Fact Exists as To Whether Defendants’

Reason for Terminating DeNardi is Pretextual

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Defendants argue that they have rebutted DeNardi’s prima

facie case of discrimination by providing a “legitimate, nondiscriminatory reason" for DeNardi’s termination: improperly

clocking out another employee, which DeNardi admits doing. 

Newton’s email to his supervisors specifically states that this

is why DeNardi was fired, as do Barkyani’s notes. 

However, DeNardi affirms that clocking one another out was a

common practice in the workplace and was not discouraged or

prohibited. If true, this is strong evidence that defendants’

reason for firing her is pretextual. DeNardi also affirms that

on one occasion, Barkyani herself called and asked DeNardi to

clock her out because she had forgotten to do so. 

To rebut DeNardi’s assertion that clocking other employees

out was an accepted course of conduct, defendants have produced a

“Security and Confidentiality Agreement” signed by DeNardi on

April 1, 2003, in which DeNardi agreed not to log on to any of

the company’s computer systems using a password other than her

own. 

Thus there is a genuine issue of material fact as to whether

clocking out other employees is a serious offense at DRA/ISS. 

This raises a genuine issue of material fact as to whether

defendants’ asserted reason for firing DeNardi is pretextual. 

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IV. 

Defendants’ Motion for Summary Judgment That They Have Not

Violated New York Human Rights Law Is Also Denied

The burdens of proof in employment discrimination cases

under New York law are governed by the same standards as those

that apply in federal civil rights cases, including the ADA. Sogg

v. Am. Airlines, Inc., 603 N.Y.S.2d 21, 23 (N.Y. App. Div. 1993);

Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992). 

The only major difference in the analysis of disability

discrimination claims under NYHRL and the ADA is that the

definition of disability under the New York State Executive Law

is broader than the ADA definition, in that it does not require a

showing that the disability substantially limits a major life

activity. Giordano, 274 F.3d at 753. Therefore, the same

analysis of plaintiff’s prima facie case applies to both her ADA

and NYHRL claims. In addition, the same genuine issue of

material fact exists as to whether defendants’ reason for firing

DeNardi is pretextual.

V. Defendant DRA’s Motion For Summary Judgment That DeNardi Fails

to Establish a Prima Facie Case Against DRA is Denied

Defendant DRA moves for summary judgment that it did not

employ DeNardi and therefore DeNardi cannot make out a prima

facie case of discrimination against it. The term “employer,” as

it is used in Title VII and related discrimination statutes, is

sufficiently broad to encompass any party who significantly

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affects the access of any individual to employment opportunities.

Spirt v. Teachers Ins. & Annuity Assoc., 691 F.2d 1054, 1063 (2d

Cir. 1982), judgment vacated on other grounds, 463 U.S. 1223, 103

S. Ct. 3565, 77 L. Ed. 2d 1406 (1983). This is true regardless

of whether that party may technically be described as an

“employer” of an aggrieved individual as that term has generally

been defined at common law. Id.

Here, DeNardi alleges that operations of ISS and DRA are so

interrelated that they represent a single employer. In order to

determine whether two entities constitute a single employer,

courts apply a four-part test, examining evidence of 1)

interrelation of operations, 2) centralized control of labor

relations, 3) common management and 4) common ownership or

financial control. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d

1235, 1240-41 (2d Cir. 1995). “‘Courts applying this four-part

standard in Title VII and related cases have focused on the

second factor: centralized control of labor relations.’” Id. at

1240 (citing Travino v. Celanese Corp., 701 F.2d 397, 404 (5th

Cir. 1983). Whether centralized control of labor relations

exists in a particular case is often determined by asking what

entity made the final decisions regarding employment matters

related to the person claiming discrimination. Id. 

Applying the four factor test to DRA and ISS, DRA is not

entitled to summary judgment because, on the current record,

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there is evidence as to all four factors that weigh against it.

Most significantly, DRA and ISS have common management, i.e. Mark

Newton and Joseph Chiseri, and it was Mark Newton who made the

final decision to terminate DeNardi. In addition, DRA appears to

have maintained some control over labor relations at ISS because

the employment forms which DeNardi signed, including an

employment application and a confidentiality statement, were

entitled “DRA Imaging, P.C./Imaging Support Services, LLC.” A

new employee benefit checklist that was completed on DeNardi’s

first day of work as well as the Employee Handbook she was given

also both state “DRA Imaging, P.C./Imaging Support Services,

LLC.” The fact that DRA’s name appears on all of these documents

indicates that they may have exercised control over these aspects

of labor relations at ISS.

There is also evidence of interrelation of operations

between DRA and ISS, because ISS is run by an “operating

committee” consisting of four members, two of whom are appointed

by DRA. In addition, DRA and ISS operate out of the same

facility. 

Finally, because ISS is a limited liability company and DRA

is one of its two members, it is highly likely that there is

common ownership of the two companies, although neither party has

presented evidence of defendants’ ownership.

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 Thus there is sufficient evidence in the record to

preclude summary judgment on the issue of whether DRA and ISS

employed DeNardi together as a single employer.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary

judgment is denied.

SO ORDERED.

Date: New York, New York

March 25, 2009

S/______________________________

 MIRIAM GOLDMAN CEDARBAUM 

 United States District Judge

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