O'Neil v. Hamilton College et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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SAMANTHA O’NEIL
Plaintiff,
-v- 6:23-CV-1254 (DNH/ML)
HAMILTON COLLEGE,
Defendant.
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APPEARANCES: OF COUNSEL:
WARD ARCURI LAW FIRM ZACHARY C. OREN, ESQ.
Attorneys for Plaintiff
185 Genessee Street, Suite 1201
Utica, NY 13501
FESTINE NELSON LLP KATHRYN M. FESTINE, ESQ.
Attorneys for Plaintiff
258 Genessee Street, Suite 307
Utica, NY 13502
BOND SCHOENECK COLLIN M. CARR, ESQ.1
& KING, PLLC SUZANNE M. MESSER, ESQ.
Attorneys for Defendants JONATHAN B. FELLOWS, ESQ.
One Lincoln Center
Syracuse, NY 13202
DAVID N. HURD
United States District Judge
1 Collin Michael Carr is listed as lead attorney in this matter but is also shown on the docket as
an attorney in Syracuse University’s Office of University Counsel. While no notice of withdrawal
was filed in this matter, the Clerk is directed to terminate the attorney in the case caption.
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DECISION and ORDER
I. INTRODUCTION
On October 10, 2023, plaintiff Samantha O’Neil (“O’Neil”) filed this
employment discrimination action against defendants Hamilton College
(“Hamilton”), Karen Leach, Roger Wakeman, Lucy Burke, Nathan Goodale,
Jeff Landry, Lisa Magnarelli, Terry Martinez, Adina Mujic, Joe Shelley,
Steve Stemkoski, Caz Ullem, and David Wippman alleging violations of her
rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the New
York State Human Rights Law (“NYSHRL”), and the Americans with
Disabilities Act of 1990 (the “ADA”).2 See Compl., Dkt. No. 1.
On August 29, 2025, defendant moved for summary judgment.
Hamilton’s Mot. Summ. J., Dkt. No. 67. That motion has been fully briefed
and will be considered on the basis of the submissions and without oral
argument. Dkt. Nos. 1, 67, 75, 77.
2 Since the filing of this action, the parties have stipulated to the dismissal of defendants Karen
Leach, Roger Wakeman, Lucy Burke, Nathan Goodale, Jeff Landry, Lisa Magnarelli, Terry
Martinez, Adina Mujic, Joe Shelly, Steve Stemkoski, Caz Ullem, and David Wippman (collectively
the “Individual Defendants”), which was approved, leaving Hamilton as the sole remaining
defendant. Dkt. Nos. 23, 27.
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II. BACKGROUND3
On January 7, 2020, O’Neil, a female, was hired by Hamilton to work as a
Discovery Team Coordinator. Pl.’s Opp’n to Def’s SOMF, Dkt. No. 75-18 ¶¶
50–52. In early 2021, O’Neil became pregnant and gave notice to defendant
that February. Id. ¶¶ 60–61. Plaintiff’s expected delivery date was
September 12, 2021. Pl.’s Opp’n to Def.’s SOMF ¶ 73; O’Neil Aff., Dkt. No.
75-18 ¶ 22.
In May 2021, plaintiff discovered potential complications with her
pregnancy when she underwent an ultrasound revealing multiple “soft
markers” which were “indicative of a child being still born or [having]
Down[’]s syndrome.” Pl.’s Opp’n to Def.’s SOMF ¶¶ 64–65; O’Neil Aff. ¶¶ 14–
15. After chromosomal testing, there remained a two percent chance that
plaintiff’s child would either be born with health defects or that there would
be a “non-viable pregnancy/birth.” Pl.’s Opp’n to Def.’s SOMF ¶ 65; O’Neil
Aff. ¶ 15. This risk caused plaintiff to experience “great anxiety[.]” Pl.’s
Opp’n to Def.’s SOMF ¶¶ 67–69; O’Neil Aff. ¶¶ 16–18.
3 For reasons discussed infra, the primary issue in this present motion is whether the
declarations that accompany defendant’s motion were properly filed in accordance with 28 U.S.C. §
1746. See Dkt. Nos. 67-1, 67-6, 67-27, 75-18. Thus, for the purposes of setting forth the factual
background in this matter, the Court will rely upon plaintiff’s affidavit (“O’Neil Aff.”) and her
response to Hamilton’s Statement of Material Facts (“Pl.’s Opp’n to Def.’s SOMF”) here. Dkt. Nos.
75-1, 75-18.
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In the summer of 2021, and in response to the COVID-19 pandemic,
Hamilton announced they would be implementing a policy (the “Policy”)
mandating that all employees either receive the COVID-19 vaccination or be
approved for an accommodation by August 26, 2021. Pl.’s Opp’n to Def.’s
SOMF ¶ 74; O’Neil Aff. ¶ 23. Hamilton established a COVID-19 Task Force
(the “Committee”) to make determinations on accommodation requests under
the Policy. See e.g., Pl.’s Opp’n to Def.’s SOMF ¶ 90. When plaintiff
discovered the Policy, she contacted her direct supervisor, Shauna Hirshfield
(“Hirshfield”), to determine next steps given the concerns about her
pregnancy. Pl.’s Opp’n to Def.’s SOMF ¶¶ 57, 75; O’Neil Aff. ¶¶ 10, 16, 24.
Hirshfield suggested that O’Neil request a delayed vaccination after she
completed her pregnancy, which plaintiff had no issue doing. Pl.’s Opp’n to
Def.’s SOMF ¶¶ 76–77; O’Neil Aff. ¶¶ 25–26.
On July 8, 2021, plaintiff contacted Hamilton’s Human Resources
Department (“HR”) to request an accommodation. Pl.’s Opp’n to Def.’s SOMF
¶ 78; O’Neil Aff. ¶ 27. On July 20, 2021, HR responded by asking plaintiff to
provide a doctor’s note supporting her request. Pl.’s Opp’n to Def.’s SOMF ¶
79; O’Neil Aff. ¶ 29. The following day, plaintiff responded to Hamilton by
providing a doctor’s note supporting her request for a delayed vaccination
accommodation from her primary care provider, Dr. Regina Farrell, M.D.
(“Dr. Farrell”). Pl.’s Opp’n to Def.’s SOMF ¶¶ 62, 80; O’Neil Aff. ¶¶ 12, 30–
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31. According to plaintiff, Dr. Farrell’s note provided Hamilton with a
medical opinion supporting plaintiff’s preference towards waiting until
completing her pregnancy before receiving being vaccinated, along with an
offer to be contacted by phone to answer any medical questions Hamilton
might have. Pl.’s Opp’n to Def.’s SOMF ¶¶ 80–82; O’Neil Aff. ¶¶ 30–31.45
On July 28, 2021, after not hearing back from Hamilton, plaintiff sent
defendant a follow-up e-mail. Pl.’s Opp’n to Def.’s SOMF ¶ 89. Thereafter,
she received a response from HR both advising that her request was
forwarded to Steve Stemkoski (“Stemkoski”), a member of the Committee,
and confirming that the Committee would be reviewing her request. Id. ¶ 90.
Between July 30, 2021 and August 2, 2021, plaintiff alleges that Stemkoski
informed her that the Committee would be denying her accommodation
request because Dr. Farrell’s note “lacked supporting documentation.” Id. ¶
91.
Plaintiff then requested that Stemkoski to explore further with the
Committee whether, in the alternative, she could continue working remotely
4 While it is unclear how plaintiff relayed this to defendant, if at all, she also alleges that “[a]
second Medical Doctor Jonathan Henderson [. . .] advised [her] not to get the vaccine while pregnant.
Pl.’s Opp’n to Def.’s SOMF ¶ 85.
5 Plaintiff argues her accommodation request was “minimal” because the request amounts to
being permitted to work from home and not obtain the COVID-19 vaccine from August 26, 2021,
when the Policy went into effect, until she gave birth on September 6, 2021––just twelve days after
she was ultimately fired by defendant on August 25, 2021. Pl.’s Opp’n to Def.’s SOMF ¶¶ 86–87;
O’Neil Aff. ¶¶ 46, 58.
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and receive the vaccine after completing her pregnancy, after which she
would return to work. Pl.’s Opp’n to Def.’s SOMF ¶ 93. But O’Neil contends
that “defendants failed to engage in an interactive process to reach an
appropriate accommodation[.]” Id. ¶ 95. Instead, defendant instructed
plaintiff to provide additional information regarding her pregnancy to the
Committee. Id. Further, in the event that Hamilton now required her to
immediately start working in-person, plaintiff alleges offering to get tested
regularly and wear protective face coverings until completing her pregnancy
and receiving the vaccine. Id. ¶ 96.
On August 13, 2021,6 Stemkoski sent plaintiff an e-mail stating: “[a]fter a
thorough request of your application, the committee has denied your medical
exemption request. As a result of this denial[,] you can choose to get
vaccinated or work with [HR] on various separation options.” Id. ¶ 97. On
August 18, 2021, plaintiff further discussed her accommodation request with
Stemkoski. Id. ¶ 99. On August 20, 2021, plaintiff sent defendant another e-
mail to request “a written decision concerning her denied requests for
accommodation[.]” Id. ¶ 100. But plaintiff contends that, “most likely in an
effort to conceal their discriminatory and retaliatory motives, [d]efendants
never provided the written decision” she sought. Id. ¶ 101. Instead, “on
6 While plaintiff describes this as having occurred on August 13, 2023, the Court will more
properly construe this as having taken place on the same date in 2021.
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August 25, 2021, [p]laintiff was abruptly terminated while working with a
student.” Id. ¶ 102. Plaintiff again requested a written decision from
defendant but received no reply. Id. ¶ 103–4.
Despite denying her request, plaintiff argues that Hamilton “did
accommodate other non-pregnant employees by allowing them to not get
vaccinated but instead to submit to COVID testing twice a week[.]” Pl.’s
Opp’n to Def.’s SOMF ¶ 109. Although O’Neil contends she demonstrated she
“could perform the essential functions of her job” and having “work[ed] from
home for over a year[,]” plaintiff claims “[n]o pregnant women were
accommodated under [d]efendant’s mandatory COVID vaccination policy,
while certain non-pregnant employees were.” Pl.’s Opp’n to Def.’s SOMF ¶
117.
In support of her claims that pregnant employees were treated less
favorably under the Policy, plaintiff has included allegations regarding
certain comparator employees at Hamilton who also submitted
accommodation requests. Pl.’s Opp’n to Def.’s SOMF ¶¶ 117–136. First,
plaintiff alleges that EE107, another pregnant employee, also requested
7 Comparator employees are referenced in the pleadings by pseudonyms, i.e., EE5, EE6, EE9,
EE10.
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accommodation on the basis of her pregnancy but was denied.8 Id. ¶ 119. A
third pregnant employee “resigned under [d]efendant’s mandatory
vaccination policy because they did not want to get vaccinated while
pregnant.” Id. ¶ 120. Thus, plaintiff contends that she and EE10, the only
two pregnant employees who sought medical exemptions under the Policy,
were both denied. Id. ¶ 126. Indeed, plaintiff contends that the Committee
“recognized” that their COVID-19 policy “disproportionately burdened
pregnant women.” Id. ¶ 121.
In addition, plaintiff asserts she was never provided with a form through
which she could request an accommodation from Hamilton while, based on
the accommodation requests submitted by other employees, it is evident that
“others clearly were” provided with a form. Pl.’s Opp’n to Def.’s SOMF ¶ 122.
Plaintiff also alleges that “[o]nly one other [male] employee was even
terminated under the policy” but that employee was “rehired after
[d]efendant discontinued the policy.” Id. ¶ 123.
According to plaintiff, non-pregnant employees who submitted an
accommodation request to Hamilton under the Policy for medical reasons
were successful. Id. ¶ 127. For example, employee EE5 successfully obtained
8 In a separate case, EE10 has also brought an employment discrimination suit against the
defendant. See Colangelo v. Hamilton College, 6:23-CV-1464 (DNH/ML). Plaintiff requested that
these matters be consolidated, which was denied and affirmed on appeal by this Court. See Dkt.
Nos. 29, 30, 33, 43, 44, 49, 61.
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an exemption under the Policy when they submitted a doctor’s note citing
their allergies. Id. Plaintiff contends that while EE5’s doctor’s note offered
no greater detail than the one that she submitted, Hamilton still granted
EE5’s accommodation request and allowed them to work from home. Id. ¶
129–30.
Another employee, EE6, sought an accommodation under the Policy due to
a hip replacement and submitted a doctor’s note, which plaintiff contends
was accepted without any requests from defendant for additional
documentation. Pl.’s Opp’n to Def.’s SOMF ¶¶ 131–33. Unlike plaintiff, EE6
was permitted to delay vaccination until after their hip surgery. Id. Finally,
plaintiff contends that employee EE9 was also granted an accommodation for
medical reasons.9 Id. ¶ 134–35. According to plaintiff, no pregnant
employees were granted an accommodation under the Policy but “all of the
other accommodation [requests] presented to the Committee were granted” as
to “other, non-pregnant Hamilton College employees.” Id. ¶ 136.
Plaintiff brings claims for: 1) discriminatory discharge in violation of Title
VII, the ADA, and the NYSHRL; 2) failure to accommodate in violation of
Title VII, the ADA, and the NYSHRL; and 3) retaliatory discharge in
violation of Title VII, the ADA, and the NYSHRL. See Compl, Dkt. No. 1.
9 O’Neil argues that defendant has not produced “any doctor’s note received from EE9” in
support of their approved accommodation request. Pl.’s SOMF ¶ 135. Plaintiff argues this makes “it
impossible to compare it the doctor’s note” she provided to Hamilton. Id.
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III. LEGAL STANDARD
Under Rule 56, summary judgment is proper where “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.” Fed. R. Civ. P. 56(a). “A genuine
issue of material fact exists if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” McCutcheon v. Colgate-
Palmolive Co., 62 F.4th 674, 686 (2d Cir. 2023) (quoting Nick’s Garage, Inc. v.
Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017)).
A fact is “material” if it “might affect the outcome of the suit under the
governing law.” Hilton v. Wright, 928 F. Supp. 2d 530, 544 (N.D.N.Y. 2013)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In
reviewing the motion, the district court must ‘draw all reasonable inferences
against the party whose motion is under consideration.’” Lake v.
HealthAlliance Hosp. Broadway Campus, 738 F. Supp. 3d 208, 215 (N.D.N.Y.
2024) (quoting Williams v. MTA Bus Co., 44 F.4th 115, 125 (2d Cir. 2022)).
But “[a] question of material fact does not exist merely because plaintiff
disagrees with the deposition testimony and documentary evidence produced
by defendant[s].” Turner v. Delta Airlines, Inc., 658 F. Supp. 3d 123, 131
(E.D.N.Y. 2023) (citing Anderson, 477 U.S. at 247–48).
After a moving party carries its burden under Rule 56(c), its opponent
then “must provide more than conclusory allegations … and show more than
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some metaphysical doubt as to the material facts.” See Vista Food Exch., Inc.
v. Comercial De Alimentos Sanchez S De R L De C.V., 147 F.4th 73, 85 (2d
Cir. 2025) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d
Cir. 2010)). Instead, “[t]he non-moving party ‘must come forward with
specific evidence demonstrating the existence of a genuine dispute of material
fact.’” Murrell v. Moscicki, 790 F. Supp. 3d 213, 220 (W.D.N.Y. 2025) (quoting
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). “Indeed, ‘the
mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.’” Campbell v.
Belgard, 765 F. Supp. 3d 234, 241 (W.D.N.Y. 2025) (quoting Anderson, 477
U.S. at 247–48).
“In sum, the ultimate test ‘is whether the evidence can reasonably support
a verdict in plaintiff’s favor.’” Waltman v. United Servs., Inc., 635 F. Supp. 3d
86, 98–99 (D. Conn. 2022) (quoting James v. N.Y. Racing Ass’n, 233 F.3d 149,
157 (2d Cir. 2000)). “Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue
for trial.” Waltman, 635 F. Supp. 3d at 99 (quoting Baez v. JetBlue Airways
Corp., 793 F.3d 269, 274 (2d Cir. 2015)).
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IV. DISCUSSION
Hamilton’s motion for summary judgment asserts that plaintiff’s Title VII
and NYSHRL pregnancy discrimination claims should be dismissed because
she cannot prove disparate treatment or disparate impact. Hamilton’s Mem.
of Law, Dkt. No. 67–32 at 8–17.10 Hamilton also contends that plaintiff’s
Title VII and NYSHRL failure to accommodate claims based upon her
pregnancy must also be dismissed because O’Neil cannot demonstrate she
was treated differently under the policy and has not shown she has a
pregnancy-related condition. Id. at 18–20. Hamilton also seeks the dismissal
of plaintiff’s ADA and NYSHRL discrimination and failure to accommodate
claims because O’Neil cannot demonstrate disability. Id. at 21–26. Finally,
Hamilton seeks dismissal of plaintiff’s retaliation claims because she has
failed to establish but-for causation as to her termination. Id. at 26–29.
Plaintiff has opposed the motion. Dkt. No. 75. O’Neil contends that she
has: 1) established a prima facie case of discriminatory discharge because a
non-pregnant person would not have had to choose between their baby and
their job as she was forced to; 2) established a prima facie case of disparate
impact by showing that, while other employees were granted
accommodations under the Policy, no pregnant women were; 3) made a prima
10 Pagination corresponds to CM/ECF headers.
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face showing of a failure to accommodate claim on the basis of pregnancy
because defendant accommodated others who were otherwise similarly
situated; 4) established pretext on defendant’s part by showing that no
pregnant employees were accommodated while every other request for a
medical accommodation submitted to defendant was approved; 5) set forth
sufficient evidence to send her discriminatory discharge claim to the jury; 6)
set forth sufficient evidence to send her ADA failure to accommodate claim to
the jury; 7) demonstrated that she can establish temporal proximity
causation with respect to her retaliation claim; and 8) demonstrated that she
can establish causation for her retaliation claim by showing that another
employee who requested accommodation based on pregnancy was
immediately terminated. Pl’s Opp’n., Dkt. No. 75-19 at 6–28.
Before considering the substantive arguments set forth in Hamilton’s
motion for summary judgment, however, the Court must first address a
deficiency that plaintiff has identified in Hamilton’s motion. See Pl.’s Opp’n
to Def.’s SOMF ¶1. In plaintiff’s response to defendant’s statement of
material facts, she asserts that the declarations of now-terminated
defendants Karen Leach and Steve Stemkoski, upon which Hamilton’s
present motion largely relies, cannot be properly considered because they
were not made under penalties of perjury as is statutorily required. See
Leach Decl., Dkt. No. 67-1; see also Stemkoski Decl., Dkt. No. 67-6. Notably,
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Hamilton has not addressed this issue in any of their briefing.11 See Def.’s
Reply Brief, Dkt. No. 77.
28 U.S.C. § 1746 (“§ 1746”) governs the substance of unsworn declarations
made under penalty of perjury. “[§] 1746 provides that an unsworn matter
may be treated as sworn, provided that it is “prove[n] by the unsworn
declaration, certificate, verification, or statement, in writing of such person
which is subscribed by him, as true under penalty of perjury, and dated, in
substantially the … form” of the model declaration provided.” In re World
Trade Center Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013) (per
curiam) (quoting 28 U.S.C. § 1746) (emphasis in original); see also LaBoeuf,
Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65 (2d Cir. 1999)
(holding that Ҥ 1746 allows for unsworn declarations to be submitted to a
court if it “is subscribed by [the declarant], as true under penalty of perjury,
and dated, in substantially the following form: ... ‘I declare (or certify, verify,
or state) under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. Executed on (date).
(Signature).’”); see also Hawke v. ADK Aquatics LLC, 2026 WL 538931 at *5
(N.D.N.Y. Feb. 26, 2026) (“To be admissible in a summary judgment
11 The Court also notes that Hamilton’s reply declaration filed by counsel similarly fails to
adhere to the requirements of 28 U.S.C. § 1746 discussed in depth infra. Dkt. No. 77-1,
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proceeding, an affidavit must be sworn to,” or, alternatively, a declaration
made under penalty of perjury.”)
“Parsing the declaration provided in the statute reveals its substantive
elements: the declarant must (1) ‘declare (or certify, verify, or state),’ (2)
‘under penalty of perjury,’ (3) that the matter sworn to is ‘true and correct.’”
In re World Trade Center Disaster Site Litigation, 722 F.3d at 488. Even
substituting “subject to punishment” in for “under penalty of perjury” has
been held to be a “substantial departure from the substance of the
declaration provided for in § 1746, and thus, does not comply with the
statute. Id.; see also Davis v. Grant, 2 at *1, n.2 (S.D.N.Y. Feb. 8, 2019) (“The
Second Circuit has held that the absence of the ‘under the penalty of perjury’
language constitutes a substantial departure from § 1746.”); see also LeBouef,
Lamb, Greene, & MacRae, L.L.P., 185 F.3d at 65–66 (reversing summary
judgment granted to plaintiff where district court excluded defendant’s
unsworn letter which “substantially” complied with the requirements of §
1746, because it included the language “[u]nder penalty of perjury, I make
the statements contained herein,” and was signed and dated, even though it
did not include language that the contents of the letter were “true and
correct”); Stair v. Calhoun, 2015 WL 1966345, at *1 (E.D.N.Y. May 1, 2015)
(finding that pro se plaintiff’s unsworn declaration that did not include the
language “true under penalty of perjury” did not meet the requirements of §
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1746 because “[i]nclusion of the language ‘under penalty of perjury’ is an
integral requirement of the statute.”) (cleaned up); Ed-George v. Burns, 2009
WL 2957796, at *2 (N.D.N.Y. Sept. 8, 2009) (finding that although § 1746
“requires only that a declaration [ ] ‘substantially’” conform with its
requirements, the words “under penalty of perjury” are “expressly required”
because without them “it is far from clear to the court that [the] [p]laintiff
fully appreciates the consequences, or is impressed with the solemnity of his
declaration”) (cleaned up).
Indeed, the “[i]nclusion of language of the language ‘under penalty of
perjury’ is an integral requirement of the statute for the very reason that it
impresses upon the declarant the specific punishment to which he or she is
subjected for certifying to false statements.” And “as the Fifth Circuit has
observed, omission of the phrase ‘under penalty of perjury’ would ‘allow[] the
affiant to circumvent the penalties for perjury in signing onto intentional
falsehoods.’” In re World Trade Center Disaster Site Litigation, 722 F.3d at
488 (quoting Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.
1988)). Accordingly, our Circuit has held that, under § 1746, it is required
“that a certification of the truth of the matter be expressly made under
penalty of perjury” and that “[a]ny other result would be contrary to the plain
language of the statute and the objective sought to be advanced by it.” Id.
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Further, when deciding a motion for summary judgment, a court may
review the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, affidavits, and any other evidence on file to
determine whether there is any genuine issue of material fact. Fed. R. Civ.
P. 56(c)(3) (emphasis added). But Rule 56 does not “impose an obligation on a
district court to perform an independent review of the record to find proof of a
factual dispute.” Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d
Cir. 2002) (collecting cases). In addition, Local Rule 56.1(a) requires that the
SOMF set forth “a short and concise statement of each material fact about
which the moving party contends there exists no genuine issue” and that
“[e]ach fact listed shall set forth a specific citation to the record where the
fact is established.” See N.D.N.Y. L.R. 56.1(a). The moving party’s failure “to
submit an accurate and complete Statement of Material Facts shall result in
a denial of the motion.” Id.
Upon review, neither of Hamilton’s declarations satisfy the key
requirements of § 1746 set forth above. See Leach Decl., Dkt. No. 67-1; see
also Stemkoski Decl. Dkt. No. 67-6. Although each declaration states that it
is made “pursuant to 28 U.S.C. § 1746” and is signed and dated by the
declarant, both declarations fail to expressly declare, certify, verify, or state
under penalty of perjury that the matter sworn to is true and correct. Supra.
Further, defendant has not addressed the absence of the required elements
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for declarations discussed supra in their briefing. Accordingly, these
declarations will not be considered.
Given that a significant portion of defendant’s statement of material facts
(“SOMF”) relies on these now-rejected declarations that the Court will not
take into consideration, defendant has not met their burden under Rule 56(c)
and their motion must be dismissed pursuant to the Local Rules of this
District. See Def.’s SOMF, Dkt. No. 67-31. Even if Hamilton’s declarations
were accepted, the Court still finds that plaintiff tends to show a likelihood of
success in raising genuine issues of material fact with respect to her claims.
In light of the deficiencies present in defendant’s motion, the Court will
not delve into the record here to evaluate each of plaintiff’s claims or directly
highlight each genuine issue of material fact that may exist. But at a
minimum, the Court does find that plaintiff’s opposition briefing tends to
support a finding that a genuine issue of material fact exists as to whether,
under the Policy, pregnant employees who sought accommodations for
medical reasons were treated differently than non-pregnant employees.
First, and as discussed supra, plaintiff alleges that, after an ultrasound, she
discovered soft markers indicating a two percent chance her child would be
born with certain birth defects. Pl.’s Opp’n to Def.’s SOMF ¶ 64–65; O’Neil
Aff. ¶ 14–15. Plaintiff also alleges that she was treated less favorably than
other non-pregnant co-workers when she sought an accommodation from the
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Policy until completing her pregnancy. Pl.’s Opp’n to Def.’s SOMF ¶¶ 117–
136. When O’Neil provided Hamilton with a doctor’s note in support of her
accommodation request, Hamilton responded that her request lacked
adequate supporting documentation. Id. ¶ 91. But plaintiff has alleged that
other, non-pregnant employees seeking accommodations for medical reasons
succeeded in doing so with nothing more than an initial doctor’s note in
support of their request. Id. ¶¶ 117–136.
“‘In 1978, Congress enacted the Pregnancy Discrimination Act’ [(“PDA”)],
which amended Title VII to protect employees from pregnancy
discrimination.” Lenzi v. Systemax, Inc., 944 F.3d 97, 103 n. 2 (2d Cir. 2019)
(quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 212 (2015)). “The
[PDA] makes clear that Title VII's prohibition against sex discrimination
applies to discrimination based on pregnancy.” Id. (quoting Young, 575 U.S.
at 210). Under the PDA, employers must “treat women affected by
pregnancy … the same for all employment-related purposes … as other
persons not so affected but similar in their ability or inability to work.”
Young, 575 U.S. at 210 (quoting 42 U.S.C. § 2000e(k)). Thus, under the PDA
“it is discriminatory to treat pregnancy-related conditions less favorably than
other medical conditions.” LaBarbera v. NYU Winthrop Hospital, 527 F.
Supp. 3d 275, 289 (E.D.N.Y. 2021) (quoting Legg v. Ulster Cty, 802 F.3d 67,
72 (2d Cir. 2016)) (cleaned up).
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Plaintiff alleges that through discovery, it was revealed that defendant
“did accommodate other non-pregnant employees by allowing them to not get
vaccinated by instead to submit to COVID testing twice a week[.]” Pl.’s
Opp’n to Def.’s SOMF ¶ 109. Despite having demonstrated that she was able
to “perform the essential functions of her job” and having “work[ed] from
home for over a year[,]” she argues that “[n]o pregnant women were
accommodated under [d]efendant’s mandatory COVID vaccination policy,
while certain non-pregnant employees were.” Pl.’s Opp’n to Def.’s SOMF ¶
117.
In support of her claim that pregnant employees were treated less
favorably than non-pregnant employees, plaintiff points to multiple
comparator employees who sought accommodations. Id. ¶¶ 117–34. Three
pregnant employees were affected by defendant’s Policy and none successfully
obtained an accommodation. Id. ¶¶ 119–126. Aside from plaintiff, “[o]nly
one other employee was even terminated under the policy” and that employee
was rehired when Hamilton discontinued the Policy. Id. ¶ 123. Plaintiff
contends that the only other two pregnant employees that sought medical
exemptions from defendant were denied. Id. ¶ 126.
Further, plaintiff has alleged that non-pregnant employees who submitted
an accommodation request from Hamilton for medical reasons were
successful. Id. ¶¶ 127–36. While Hamilton requested more information from
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plaintiff in response to her accommodation request, she alleges that other
employees seeking accommodation, despite providing defendant with no
greater level of detail in their requests, experienced a lesser degree of
scrutiny from the Committee that she received. Id. ¶¶ 129–33. In sum,
plaintiff argues while no pregnant employees were granted an
accommodation under the Policy, “all of the other accommodation [requests]
presented to the Committee were granted” as to “other, non-pregnant
Hamilton College employees.” Id. ¶ 136. In addition, plaintiff has called the
fairness of defendant’s accommodation request process into question,
asserting that she was never provided a form to request an accommodation
from the defendant while asserting that it was evident that “others clearly
were.” Id. ¶ 122. Plaintiff has also introduced certain Equal Employment
Opportunity Commission (“EEOC”) guidance which advises that pregnant
employees, both generally and in the context of COVID-19 vaccination, may
be entitled to “job modifications, including telework” and that “[e]mployers
should ensure that supervisors, managers, and human resources personnel
know how to handle such requests to avoid disparate treatment in violation
of Title VII.” Pl’s Opp’n. Mem., Dkt. No. 75-19 at 10; see also EEOC
Guidance, Dkt. No. 75-20 at 38–39, 50–52.
By contrast, Hamilton contends that thirteen employees requested
accommodation under the Policy. Def.’s SOMF, Dkt. No. 67-31 ¶ 42.
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According to the defendant, six of those requests were for medical reasons––
four requests made by men and two submitted by women. Id. ¶ 43. Of those
six requests, three were granted. Id. Only one of the requests was granted
for a female employee, EE9, and defendant contends that this request was
only granted after the employee provided more detailed information from her
medical provider supporting her request. Id. Notably, defendant contends
that no employees were allowed to submit to COVID testing instead of
complying with the Policy, nor was any employee permitted to work remotely
instead of receiving the vaccine. Id. ¶¶ 46–47.
Thus, the Court finds that plaintiff tends to show that genuine issues of
material fact exist as to whether the Policy was, either in its application or
effect, discriminatory towards plaintiff. Further, defendant has failed to
meet their burden under Rule 56 and their SOMF does not comply with the
Local Rules in this District. For these reasons, Hamilton’s motion will be
denied.
V. CONCLUSION
For the foregoing reasons, the Court finds that Hamilton’s motion has not
been adequately briefed for the Court to reach a conclusion that no genuine
issues of material of fact exist.
Therefore, it is
ORDERED that
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1. Hamilton’s motion for summary judgment (Dkt. No. 67) is DENIED;
The Clerk of the Court is directed to terminate the pending motion and
update the case caption as directed above.
IT IS SO ORDERED.
Dated: June 12, 2026
Utica, New York.
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