LESLIE G. FOSCHIO, Magistrate Judge.
On Mach 3, 2014, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned (Dkt. 39). The matter is presently before the court on Defendants' motion for summary judgment (Dkt. 80), filed October 2, 2015.
On July 10, 2012, Plaintiff commenced this action against Defendants alleging employment discrimination and retaliation in violation of Title I of the Americans with Disabilities Act of 1990 ("ADA), 42 U.S.C. § 12111 et seq., as amended by the ADA Amendments Act of 2008 ("ADAAA"), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. Defendants to this action include Plaintiff's former employer County of Erie, New York ("County"), and Erie County Youth Defendant Services ("Youth Services") (together, "Defendants"), for which Plaintiff was employed most recently as a Youth Detention Worker ("YDW"). On November 9, 2012, Defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the Complaint for failure to state a claim. (Dkt. 11). In a Decision and Order filed January 2, 2013 (Dkt. 20) ("D&O"), District Judge William M. Skretny granted the motion to dismiss, entering judgment in favor of Defendants on January 3, 2013 (Dkt. 21), and closing the case. Grant v. County of Erie, 2013 WL 49707 (W.D.N.Y. Jan. 2, 2013). On February 4, 2013, Plaintiff appealed the dismissal (Dkt. 22), to the Second Circuit Court of Appeals. In its mandate dated October 17, 2013 (Dkt. 25), the Second Circuit affirmed the D&O as to the dismissal of the discrimination claim under the ADEA and the retaliation claims under the ADA and the ADEA, but vacated the D&O as to the ADA discrimination claim and all state law claims. Grant v. County of Erie, 542 Fed.Appx. 21, 24-25 (2d Cir. Oct. 17, 2013). In particular, the Second Circuit held the district court's reliance in dismissing the Complaint for failure to state a claim on one physician's statement questioning the wisdom of permitting Plaintiff to resume working as a YDW, in light of Plaintiff's age and history of work-related injuries, given that the physician nevertheless found Plaintiff was capable of performing the essential functions of the YDW job. Id. at 23-24. In reinstating the state law claims, the Second Circuit held their sua sponte dismissal by the district court for failure to file and serve a notice of claim was in error because Plaintiff was denied notice and an opportunity to address the issue. Id. at 24. On November 19, 2013, Defendants filed their answer (Dkt. 27).
On October 5, 2015, Defendants filed the instant motion seeking summary judgment (Dkt. 80) ("Defendants' Motion"), attaching the Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Dkt. 80-1) ("Defendants' Memorandum"), and the Statement of Undisputed Material Facts (Dkt. 80-2) ("Defendants' Statement of Facts"). Also filed in support of Defendants' Motion was the Amended Declaration of Alisa A. Lukasiewicz, Esq. (Dkt. 79) ("Lukasiewicz Declaration"), attaching Defendants' exhibits A through 0 (Dkts. 79-1 through 79-15) ("Defendants' Exh(s). __").
Based on the following, Defendants' Motion is DENIED in part and GRANTED in part.
Plaintiff Linda Grant ("Plaintiff' or "Grant"), commenced working for Defendants County of Erie ("the County"), and Erie County Youth Detention Services ("Youth Services") (together, "Defendants"), in 1983, and was last employed with Youth Services as a Youth Detention Worker ("YDW"), at the Youth Detention Center ("Detention Center" or "the facility")). The Detention Center houses both male and female juvenile delinquents, juvenile offenders and, until 2008, children in need of supervision. Residents of the Detention Center ranged between 8 and 18 years of age. At all times relevant to this action, Plaintiff's supervisor at the Detention Center was Donald Watkins ("Watkins"), who held the highest employment rank at the Detention Center.
As a YDW, Plaintiff was required to transport residents within the facility to and from classes, activities, and meals, and to escort residents to off-site locations such as to Family Court appearances. Detention Center residents were housed in separate rooms located within three different "pods" with up to 20 children in each pod. Each pod was designated for the various detention groups, e.g., male juvenile offenders in one pod, and male juvenile delinquents in another pod. There were three YDWs assigned to each pod for any given YDW work shift. Because physical altercations between two children or between a child and a staff member occasionally occurred, and children sometimes threatened to harm themselves or others, YDWs were trained as to various techniques to subdue unruly children. If an altercation or incident required physical intervention by YDWs, however, YDWs were not permitted to physically intervene unless there was sufficient staff available to safely do so. Accordingly, if a fight broke out, or if a child threatened harm, all available staff would be called to intervene and generally within moments of the request staff would arrive from other parts of the Detention Center including, inter alia, from other pods, the nurses' station, and administration, to assist with physically restraining the combative resident. All YDWs received training on proper restraint techniques prior to commencing employment at the Detention Center and Plaintiff had received training to instruct other YDWs on proper restrained techniques. Plaintiff estimates that at most, she was required to physically restrain a resident once a month. Plaintiff's Declaration 69.
Twice during her tenure at the Detention Center, Plaintiff injured her nondominant left hand
The second, more recent injury occurred on February 17, 2008
checked at the hospital where it was determined Plaintiff had broken her hand. Plaintiff underwent surgical reduction and K-wire fixation (pin) which was removed on August 15, 2008, when the fracture had healed. Treatment for Plaintiff's recent injury was provided by Dale R. Wheeler, M.D. ("Dr. Wheeler"), of the Hand Center of Western New York ("the Hand Center"). Plaintiff also received extensive physical therapy after the surgery for the injury. Following treatment for the recent injury, Plaintiff was able to close her left hand to the same extent as after treatment for the earlier injury. While out from work on disability for the recent injury, Plaintiff received Workers' Compensation benefits from February 17, 2008 through November 17, 2008.
At the request of the Workers' Compensation Administration, on November 4, 2008, Plaintiff, whose Workers' Compensation benefits were about to expire, underwent a Fitness for Duty examination by Robert Durning, M.D. ("Dr. Durning"), with Superior Medical Consultants ("SMC"), the County's third-party Workers' Compensation independent medical examiners. Dr. Durning determined Plaintiff was no longer disabled by the recent injury and could return to "unrestricted work activity with the injured left hand." Dr. Durning Report.
By letter to Plaintiff dated November 25, 2008, Erie County Personnel Supervisor Joseph P. Dobies ("Dobies") ("Dobies's Letter"),
On December 1, 2008, Plaintiff submitted to Watkins, her supervisor, a form titled Requests for Reasonable Accommodations under the ADA ("Accommodations Request"),
On a Physician Certification completed on December 3, 2008 by Dr. Drummond, Plaintiff's PCP ("Dr. Drummond's Certification"),
By letter to Plaintiff dated December 9, 2008 ("December 9, 2008 Letter"),
On December 18, 2008, Dr. Drummond examined Plaintiff and updated Plaintiff's disability status, indicating Plaintiff remained totally temporarily disabled through January 31, 2009.
On January 15, 2009, Watkins recommended Plaintiff's Accommodations Request be approved, but the Accommodations Request was denied that same day by the County's Appointing Officer.
On February 12, 2009, Dr. Drummond completed another Physician's Certification form ("Dr. Drummond's Second Certification"),
By letter to Plaintiff dated February 23, 2009 ("Termination Letter"),
On October 8, 2009, Plaintiff was examined by Dr. Drummond who cleared Plaintiff to return to work without any restrictions, and Plaintiff provided the report to the County. Despite being cleared to return to work by her PCP, the County required Plaintiff to undergo a Fitness for Duty evaluation performed on December 9, 2009, by orthopedic surgeon Marc Bergeron, M.D. ("Dr. Bergeron"), with SMC, Defendants' Workers' Compensation medical consultants. Dr. Bergeron reported that "[t]he main concern of the claimant is persistent symptoms of the left hand." Dr. Bergeron's Report
Id.
Although Dr. Bergeron references the physical requirements of Plaintiff's YDW job, Plaintiff denies having provided Dr. Bergeron with the job description such that Plaintiff found "curious" Dr. Bergeron's concern over the physical demands of the YDW position. Plaintiff's Declaration ¶¶ 109-14.
By letter dated February 19, 2010 ("February 19, 2010 Letter"),
On July 16, 2010, Plaintiff filed an administrative complaint ("Administrative Complaint"),
Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The court is required to construe the evidence in the light most favorable to the non-moving party. Co//azo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322; see Anderson, 477 U.S. at 247-48 ("summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). "A fact is material if it `might affect the outcome of the suit under governing law.'" Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson, 477 U.S. at 248).
"[T]he evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary judgment where "`the plaintiff has failed to come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on' an essential element of a claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992)). Once a party moving for summary judgment has made a properly supported showing of the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). "[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not `genuine' issues for trial." Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). "An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133,137 (2d Cir. 2009)).
In the instant case, Plaintiff specifically claims that Defendants, in violation of the ADA, the ADEA, and NYSHRL, discriminated against Plaintiff with regard to her employment, and also retaliated against Plaintiff for complaining about the alleged employment discrimination. Although Judge Skretny, in the D&O, dismissed all claims for relief for failure to state a claim, all claims but those alleging retaliation were reinstated by the Second Circuit. Defendants now move for summary judgment on the reinstated employment discrimination claims asserted under the ADA, the ADEA, and NYSHRL.
In support of summary judgment, Defendants argue Plaintiff cannot establish a prima facie case of employment discrimination under the ADA, Defendants' Memorandum at 5-11; the termination of Plaintiff's employment with the County was for the legitimate, non-discriminatory reason that Plaintiff's injured left hand rendered Plaintiff unable to defend herself and co-workers from unruly residents of the Detention Center, which is an essential function of the YDW job, id. at 11-12; Plaintiffs failure to timely file a notice of claim pursuant to N.Y. County Law § 52 requires dismissal of all claims under the NYSHRL, id. at 12; and Plaintiff has failed to establish the elements of an age discrimination claim under the ADEA. Id. at 12-13. In opposing summary judgment, Plaintiff argues she has established a prima facie case of employment discrimination under the ADA insofar as Defendants regarded Plaintiff as being disabled in performing the major life activity of working, Plaintiff's Response at 5-17; Defendants chose not to allow Plaintiff to return to work because Defendants did not want to be required to accommodate Plaintiffs disability, id. at 17-20; and Defendants have not moved for summary judgment with regard to Plaintiff's failure to accommodate claim because Defendants failed to engage in the interactive process as required. Id. at 21-25. In further support of summary judgment, Defendants reiterated that even assuming, arguendo, Plaintiff could establish a prima facie case of discrimination under the ADA, Plaintiff's employment was terminated for a legitimate, nondiscriminatory reason, i.e., Plaintiff's "compromised" condition presented a safety threat to Plaintiff and others for which no accommodation would be reasonable, Defendants' Reply at 2-6; the County did not discriminate in determining Plaintiff could not perform the essential functions of her YDW job, id. at 6-9, the County's actions complied with applicable County policy and all relevant legal requirements, id. at 9-10; all state law claims must be dismissed for failure to timely serve a notice of claim, id. at 10; and Plaintiff's failure to raise any issue of material fact suggesting her employment was terminated because of her age requires dismissal of the ADEA claim. Id.
"The ADA prohibits discrimination against a `qualified individual on the basis of disability' in the `terms, conditions, and privileges of employment.'" Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010) (quoting 42 U.S.C. § 12112(a)). Insofar as the ADA was amended by the ADAAA, the ADAAA is not to be retroactively applied to conduct preceding its effective date of January 1, 2009. Price v. City of New York, 558 Fed.Appx. 119, 121 (2d Cir. Mar. 14, 2014) (declining to apply "substantially limits" standard under ADAAA to conduct occurring in 2008 "[b]ecause the ADAAA was not retroactively applicable . . . ."); Ragusa v. Malveme Union Free School Dist., 381 Fed.Appx. 85, 87 n. 2 (2d Cir. June 21, 2010) (applying the version of the ADA in effect during the time at issue, which ended with the plaintiff's termination, because the ADAAA does not retroactively apply, and citing cases); Young v. Precision Metal Products, Inc., 599 F.Supp.2d 216, 223 (D.Conn. 2009).
The same three-part burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ("McDonnell-Douglas"), used to analyze discrimination claims under Title VII is used to analyze discrimination claims under the ADA. Kovaco v. Rockbestos-Surprenant Cable Corporation, 834 F.3d 128, 136 (2d Cir. 2016) (analyzing employment discrimination claims under, inter alia, the ADA and Title VII "using the now-familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas. . . ."). In particular, the plaintiff must first establish a prima facie case of employment discrimination based on a disability. Id. Upon meeting this de minimus burden of establishing a prima fade case of employment discrimination, Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310, 316-17 (2d Cir. 1999) (citing Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)), the burden shifts to Defendant to offer a legitimate, non-discriminatory reason for the challenged actions. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (citing McDonnell Douglas Corp., 411 U.S. at 802). Once Defendant has asserted a neutral reason for the alleged discriminatory action, "the inference of discrimination raised by the prima facie case then drops out and the plaintiff must prove by a preponderance of the evidence that the employer's proffered reason is merely a pretext for discrimination." Brennan, 192 F.3d at 317 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)). See also Bucalo v. Shelter Island Union Free School District, 691 F.3d 119, 129 (2d Cir. 2012) ("If the defendant satisfies its burden of production, then `the presumption raised by the prima facie case is rebutted and drops from the case." (internal quotation marks and citation omitted)), and Terry, 336 F.3d at 138 ("to defeat summary judgment, the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." (citing Stern v. Trustees of Columbia, 131 F.3d 305, 312 (2d Cir. 1997))). "At the final stage, the plaintiff then has `the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision' — a burden that `merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination.'" Bucalo, 691 F.3d at 129 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 256 (1981)).
To establish a prima facie case of employment discrimination under the ADA, "a plaintiff must prove that: `(1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of his disability or perceived disability.' Kinneary, 601 F.3d at 155-56 (quoting Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)). In the instant case, the first element, i.e., that Defendants are covered by the ADA, is not disputed, nor is the termination of Plaintiff from her YDW position challenged as anything other than an adverse employment action. Accordingly, what remains in dispute is the second element, i.e., whether Plaintiff was disabled or perceived as disabled within the meaning of the ADA, as well as the third element, to wit, whether Plaintiff could perform the essential functions of her YDW position with a reasonable accommodation which Defendants failed to provide.
The ADA only protects against employment discrimination of a "qualified individual with a disability," 42 U.S.C. § 12112(a), defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). See McBride, 583 F.3d at 96 (discussing substantive standard for an ADA claim). As relevant to the instant case, "disability" is defined under the ADA as
42 U.S.C. § 12102(1).
In the instant case, Plaintiff claims Defendants discriminated against her with regard to her employment in two ways including failing to accommodate or to engage in the interactive process while Plaintiff was partially disabled by the February 17, 2008 injury to her left hand, Plaintiff's Response at 2, and by continuing to regard Plaintiff as disabled after Plaintiff received medical clearance from her PCP to return to work on October 8, 2009. Id. Although Plaintiff has conceded that her claims are limited to acts occurring fewer than 300 days prior to filing her Administrative Complaint on July 16, 2010, i.e., September 19, 2009, id. at 2, for the approximately three week period between September 19, 2009 and October 8, 2009, the date Plaintiff's primary care physician, Dr. Drummond, cleared Plaintiff to return to work without any restrictions, Plaintiff's claim that she was able to perform the essential functions of her YDW position with a reasonable accommodation, including either an extended period of leave without pay until Plaintiff fully recovered, or a temporary assignment to a light duty position, the request for which Defendants denied, remains temporally viable. See Hoffman v. Williamsville School Dist., 443 Fed.Appx. 647, 649-50 (2d Cir. Oct. 31, 2011) (affirming district court's dismissal of ADA claim for failure to accommodate insofar as claim was filed more than 300 days after the accommodation was denied).
Plaintiff argues that between September 19, 2009 and October 8, 2009, when Plaintiff was deemed by Dr. Drummond disabled in her ability to work in a job requiring physical activity involving her hands and wrists, Plaintiff requested a temporary assignment to a position which required such tasks as writing, filing, answering telephones, and driving, but Defendants refused the request without ever meeting with Plaintiff. Plaintiffs Response at 21-22. Plaintiff further maintain Defendants could have created a YDW position that did not require the need to physically restrain Detention Center residents, Plaintiff's only job restriction at that time, yet Defendants again failed to even speak with Plaintiff about the request. Id. at 22.
It is undisputed that Plaintiff sustained a hand injury in February 2008, and that following the injury Plaintiff has had limited use of her left hand, including an inability to fully close her left hand into a fist, or to grasp objects.
"In evaluating whether a particular job function is `essential,' this Court considers `the employer's judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.'" Stevens, 851 F.3d 229 (quoting McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (additional citation omitted)). "Courts `must give considerable deference to an employer's judgment regarding what functions are essential for service in a particular position,'" id. (quoting Shannon v. New York City Transit Authority, 332 F.3d 95, 100 (2d Cir. 2003)), with no single listed factor dispositive. Id. (citing Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997)). Furthermore, the determination of whether a job function is essential is a question of fact determined based on "`both the employer's description of a job and how the job is actually performed in practice.'" Id. (quoting McMillan, 711 F.3d at 126). In the instant case, there exists a material issue of fact as to whether the ability to restrain unruly youths residing at the Detention Center was an essential function of Plaintiff's YDW position.
In particular, Plaintiff submitted in support of summary judgment a copy of the job description for a Youth Detention Worker ("Job Description"),
In contrast to Plaintiff's assertions, Plaintiffs supervisor, Watkins, explains that based on his personal knowledge as the Detention Center's supervisor from 1991 until his retirement in 2014, "the need to restrain the youths residing at the County [Youth Detention] Facility in the event of an episode is without a doubt an essential part of the job." Watkins Declaration
If restraining unruly youths is not an essential function of the YDW position, then Plaintiff must be found able to perform the essential functions of the YDW position without regard to whether Plaintiff required any accommodation of her left hand impairment. On the other hand, if it is ultimately determined that restraining unruly Detention Center residents was an "essential function" of Plaintiff's YDW position, then Plaintiff may be able to establish Defendants discriminated against her in violation of the ADA by "`not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.' Sheng v. M&T Bank Corporation, 848 F.3d 78, 86 (2d Cir. 2017) (quoting McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009) (quoting 42 U.S.C. 12112(b)(5)(A))). "A plaintiff makes out a prima facie case of disability discrimination arising from a failure to accommodate by showing each of the following:
Id. (quoting McBride, 583 F.3d at 96-97) (internal quotation marks omitted)). In particular, Plaintiff must establish there was a reasonable accommodation that would have permitted Plaintiff to perform the essential job function of restraining unruly youths because "la] reasonable accommodation can never involve the elimination of an essential function of a job.'" Stevens, 851 F.3d at 230 (quoting Shannon, 332 F.3d at 100). Nevertheless, "[a] reasonable accommodation may include lob restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals with disabilities.'" Id. (quoting 42 U.S.C. § 12111(9)). Requiring another employee to perform the essential functions of a disabled worker's job, however, is not a reasonable accommodation under the ADA. Id. at 231.
Although generally where the suggested reasonable accommodation is a transfer to another position, the onus is on the plaintiff to establish she requested, considered and was open to such position, Stevens, 851 F.3d at 230-31, in the instant case, Plaintiff maintains, Plaintiffs Response at 24, and Defendants do not dispute, that Plaintiff was not required to request such an accommodation because the County's Transitional Duty Program ("Transitional Duty Program"), requires the County to offer transitional duty to injured employees regardless of whether it is requested by the employee. Transitional Duty Program
Summary judgment thus is DENIED as to whether Plaintiff was subjected to employment discrimination in violation of the ADA as an individual with a physical impairment who nevertheless could perform the essential functions of her YDW job with or without a reasonable accommodation.
Plaintiff also maintains that after Dr. Drummond, on October 8, 2009, cleared Plaintiff to return to her YDW position without restriction, Defendants failed to do so, despite being eligible under N.Y. Civil Service Law § 71 ("§ 71"), for reinstatement to her prior position for up to four years from the date of her termination, establishes Defendants regarded Plaintiff as having an impairment in violation of the ADA. Plaintiff's Response at 15-16. Defendants have not responded in opposition to this argument, relying instead on their assertion that Plaintiff's employment was terminated for a legitimate, non-discriminatory reason, that is, Plaintiff's physical impairment posed a direct threat to Plaintiff and co-workers insofar as Plaintiff was rendered unable to defend herself and others from physical attack by an unruly Detention Center resident. Defendants' Reply at 7-8.
The ADA, as amended by the ADAAA, provides that,
42 U.S.C. § 12102(3)(A).
In other words, the ADAAA
Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012) (quoting H.R.Rep. No. 110-730, pt. 1, at 14 (2008) (emphasis added). As such, Plaintiff need not demonstrate that Defendants regarded her as being substantially limited in a major life activing; rather, Plaintiff was only required to raise a genuine issue of material fact as to whether Defendants regarded Plaintiff as having a physical impairment. Id.
After Plaintiff was cleared by her PCP, Dr. Drummond, on October 8, 2009, she >no longer had any disability and, as such, no accommodation was required. Significantly, Dr. Bergeron's report, as determined by the Second Circuit, Grant, 542 Fed.Appx. at 24, admits Plaintiff could perform the regular duties of her YDW position, and Bergeron's "personal opinion" in which Plaintiff's desire to return to the position is "questioned" given an increased likelihood that Plaintiff would again be injured is nothing more than mere speculation which does not, as a matter of law, support a finding that Plaintiff was not able to perform the essential functions of her job.
Pursuant to § 71, if an employee separates service "by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law," the employee is entitled to a one year leave of absence, or two years if the disability results from an assault sustained in the course of employment. N.Y. Civil Service Law § 71. Following such leave the employee, within one year of the termination of the disability, may apply for a medical examination to be conducted by a medical officer selected by the department to certify the employee's fitness for duty to "be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible to transfer." Id. In the absence of an appropriate vacancy to which the employee can be reinstated, "the name of such person shall be place upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list fora period of four years." Id. (italics added). It is significant that Defendants have not replied in further support of summary judgment on this point, nor do Defendants deny that upon being cleared to work without restriction on October 8, 2009, Plaintiff was eligible for reinstatement pursuant to § 71. Rather, Defendants assert only that temporary assignments to another job as a reasonable accommodation must be in accordance with any relevant collective bargaining agreement, and the determination as to whether such a job is available is part of the County's "objective decision-making process. . . ." Defendants' Reply at 6. Defendants do not, however, assert that any attempt was undertaken to determine whether a suitable temporary assignment Plaintiff could perform was available.
Accordingly, there are issues of fact as to whether Plaintiff was entitled to be reinstated to her YDW position pursuant to § 71 upon being cleared to return to work without restriction.
Moreover, Defendants' assertion that Plaintiff's termination was based on Dr. Bergeron's conclusion that Plaintiff's physical condition posed a direct threat to the safety of herself and her co-workers, Defendants' Memorandum at 7-11; Defendants' Reply at 7-8, is not supported by Dr. Bergeron's Report. In fact, Dr. Bergeron's Report specifically states "[Plaintiff] would be able to defend herself," Dr. Bergeron's Report at 5, and is silent as to Plaintiff's ability to protect co-workers, with no indication that Dr. Bergeron was ever asked to comment on that possibility. Further Dr. Bergeron himself emphasized that his examination of Plaintiff was only a "Fitness for Duty Evaluation." Id. at 5. Accordingly, the record contains sufficient evidence to avoid summary judgment that Defendants' failure to reinstate Plaintiff pursuant to § 71, to her YDW, or similar, position after being cleared to work without restriction by Dr. Drummond on October 8, 2009, consistent with Dr. Bergeron's determination that Plaintiff could perform the duties of her YDW job, including defending herself, was based on Defendants' perception that Plaintiff is disabled.
Summary judgment on Plaintiff's claim that Defendants failed to reinstate Plaintiff to her YDW position because they wrongly regarded Plaintiff as disabled in violation of the ADA is DENIED.
Plaintiff having established genuine issues of material fact as to whether she has established a prima facie case of employment discrimination under the ADA based both on having an impairment, or being regarded as having an impairment, has shifted the burden to Defendants to provide a legitimate, non-discriminatory reason for the termination of Plaintiff's employment.
Defendant, in support of summary judgment, attributes the termination of Plaintiff's employment to Plaintiff's inability to protect herself and her co-workers from harm that could be inflicted by an unruly Detention Center resident, Defendants' Memorandum at 7-11; Defendants' Reply at 7-8, and Plaintiff was discharged pursuant to Rule XVII of the Rules for the Classified Civil Service of the County of Erie which provides that a leave without pay shall not exceed one year, with an absence in excess of one year being deemed the equivalent of a resignation. Defendants' Memorandum at 11-12. Plaintiff has not responded to this argument.
Genuine safety concerns have been held to be a legitimate, non-discriminatory reason supporting an adverse employment action under the ADA. See, e.g., Gaines v. N.Y.C. Transit Authority, 353 Fed.Appx. 509, 510-11 (2d Cir. Nov. 16, 2009) (holding city transit authority's directive prohibiting train operator with bilateral hearing aids from operating trains in designated train yard was motivated by legitimate public safety concerns and, as such, did not constitute unlawful employment discrimination under the ADA). Accordingly, Defendants have stated a legitimate, non-discriminatory reason for terminating Plaintiff's employment, and the burden shifts to Plaintiff to establish a material issue of fact exists that could support a finding that such legitimate, nondiscriminatory reason is mere pretext for unlawful discrimination.
Conclusory allegations unsupported by any evidence that an employer's legitimate, nondiscriminatory reasons for an adverse employment action are mere pretext for discrimination are insufficient to satisfy Plaintiff's burden under Rule 56(e) on summary judgment. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (affirming summary judgment where plaintiff presented only affidavit of challenged custom and practice of race discrimination in absence of any evidence that affiant had any connection with relevant department until after plaintiff was terminated (citing Smith v. American Exp. Co., 853 F.2d 151, 154-55 (2d Cir. 1988) (affirming summary judgment where plaintiff failed to present more than conclusory, unsupported assertions that employer's proffered race-neutral reason for denying promotion was pretext))). Nevertheless, the Second Circuit has long recognized that direct evidence of employment discrimination or a "smoking gun" is typically not available. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). As such, that a defendant's legitimate, nondiscriminatory explanation for an adverse employment action is mere pretext for intentional discrimination may be established by circumstantial evidence. Holcomb v. lona College, 521 F.3d 130, 141 (2d Cir. 2008). Here, Plaintiff has produced sufficient evidence that Defendants' proffered legitimate, nondiscriminatory reason for terminating her employment is mere pretext to disability-based employment discrimination.
In particular, Plaintiff has provided a list of 16 other YDWs who, after sustaining injuries, were permitted either to return to work with no restrictions, or were permitted to return to a modified position, YDWs Accommodations, yet Plaintiff was never offered a similar accommodation despite the Transitional Duty Program requiring the County to do so. Further, Defendants' reliance on Dr. Bergeron's Report as supporting the asserted reason for terminating Plaintiff's employment, i.e., that Plaintiff was unable to defend herself or co-workers, as discussed above, Discussion, supra, at 29-30, is inapposite because Dr. Bergeron specifically found Plaintiff would be able to defend herself, and is silent as to whether Plaintiff would be able to defend others.
As further circumstantial evidence that Defendants' legitimate, nondiscriminatory reason for terminating Plaintiff's employment was mere pretext are inconsistent statements made by Defendants regarding whether Defendants required an injured employee to be fully healed prior to returning to work after a medical leave of absence. Significantly, "[c]ourts have `consistently found' that such `100% healed' or `fully healed' policies violate the ADA." Warmsley v. N.Y. City Transit Auth., 308 F.Supp.2d 114, 121-22 (E.D.N.Y. 2004) (citing cases) ("[T]he [defendant], by implementing its `disability has terminated' policy, required individuals returning from medical leave to be disability-free. Thus, [defendant] regarded every former employee who had taken a medical leave as `substantially limited' in his ability to work in a broad range of jobs."); see also Rodriguez v. Atria Sr. Living Group, Inc., 887 F.Supp.2d 503, 511 n. 3 (S.D.N.Y. 2012) (noting that a "100% healed" policy prevents individual assessments and therefore violates the ADA). In the instant case, Plaintiff maintains Defendants had an unlawful policy of not returning YDW to work without being fully healed. Plaintiff's Response at 15 (citing Plaintiff's Declaration ¶¶ 145-16). Although Defendants assert they do not have a policy of requiring an injured employee be fully healed in order to return to work, Defendants' Reply at 9 (maintaining whether to return an injured employee to light-duty work based on the employee's restrictions and the availability of suitable work is made on a caseby-case basis), when asked whether the County had a formal or informal policy precluding returning employees to work unless they were cleared for full work duty, Dobies specifically responded, "Yes," and continued, "That was a standard. You needed clearance to return a hundred percent." Dobies Dep. Tr.
Accordingly, the record contains sufficient evidence upon which a reasonable jury could find that Defendant's legitimate, nondiscriminatory reason, viz., workplace safety, for terminating Plaintiff's employment was mere pretext for disability-based employment discrimination. Summary judgment therefore is DENIED on Plaintiff's ADA claim.
Although in the Fifth Claim, Plaintiff claims Defendants discriminated against her based on her age, 49, in violation of the ADEA, Complaint 1M 42-44 ("ADEA Claim"), Defendants assert, Defendants' Memorandum at 12-13, Plaintiff has failed to point to any evidence in the record suggesting the termination of Plaintiff's employment was based on Plaintiff's age and Plaintiff, in opposing summary judgment, has not responded to this assertion other than to acknowledged that she has already conceded to the dismissal of her ADEA Claim in its entirety. Plaintiff's Response at 2 (citing D&O at 7). Defendants have not further addressed the ADEA Claim other than to assert "the age discrimination claim can be dismissed." Defendants' Reply at 10.
Because Plaintiff conceded to the dismissal of the ADEA Claim, see D&O at 7 (citing Dkt. 16 at 5), and Plaintiff has not provided any argument for reviving such claim, summary judgment is GRANTED as to Plaintiff's ADEA Claim.
Plaintiff's Second and Sixth Claims, respectively, allege employment discrimination under the NYSHRL based on disability, Complaint ¶¶ 31-34, and age, id. ¶¶ 45-46 (together, "the state law claims"). In addressing Defendants' earlier motion to dismiss, the state law claims were dismissed, sua sponte, based on Plaintiff's failure to timely file a notice of claim to the County, as required by N.Y.County Law § 52. D&O at 11. The Second Circuit reversed the sua sponte dismissal of the state law claims because Plaintiff had not been given notice of the ground for dismissal and an opportunity to be heard on this inadequate notice affirmative defense which was not asserted by Defendants. Grant, 542 Fed.Appx. at 24. Defendants, who raised Plaintiff's failure to serve the notice of claim as an affirmative defense in their Answer ¶ 16, filed after the Second Circuit's modification of the D&O, now argue in support of summary judgment that Plaintiff's failure to timely serve a notice of claim pursuant to N.Y.County Law § 52 requires dismissal of the state law claims. Defendants' Memorandum at 12. In opposing summary judgment, Plaintiff has not addressed her state law claims other than to acknowledge their reinstatement by the Second Circuit. Plaintiff's Response at 2. In further support of summary judgment, Defendants reiterate that although Plaintiff now been apprised of her failure to timely provide the County with notice of her claims under state law, and provided with an opportunity to oppose dismissal on this ground, she has failed to do so. Defendants' Reply at 10.
Pursuant to N.Y. County Law § 52, prior to commencing an action for damages against the county, the plaintiff must file and serve a notice of claim against the county within 90 days after the claim arises. N.Y. County Law § 52(a). Plaintiff's undisputed failure to serve the requisite notice, given that the 90-day time period for doing so has long expired, is fatal to her state law claims. See Mills v. Monroe County, 451 N.E.2d 456, (N.Y. 1983) ("When an employment discrimination action is brought against a county under the State . . . statutes, the failure to timely file a notice of claim shall be fatal unless the action has been brought to vindicate a public interest or leave to serve late notice has been granted by the court."). No argument having been advanced that the instant action has been brought to vindicate a public interest, nor any request for leave to serve late notice having been made to the court, Plaintiff's failure to serve the County with any notice of claim requires dismissal of the state law claims.
Defendants' Motion is GRANTED as to the state law claims.
Insofar as Plaintiff asserted retaliation claims under the ADA and NYSHRL, Complaint ¶¶ 35-41, the dismissal of such claims in the D&O, D&O at 11-12, was affirmed by the Second Circuit. Grant, 542 Fed.Appx. at 24. Accordingly, such claims remain dismissed and are not before the court on summary judgement.
Based on the foregoing, Defendants' Motion (Dkt. 80) is DENIED in part and GRANTED in part, and the case will be scheduled for trial on Plaintiff's ADA claims.
SO ORDERED.
