KATHERINE B. FORREST, District Judge.
On January 9, 2008, Sergeant Michael Garvey, a police officer employed by the Town of Clarkstown, injured his knee while making an arrest. Over the next two years, he received disability benefits under N.Y. Gen. Mun. Law § 207-c ("§ 207c") and was not required to work. In April 2010, defendants
Here, Garvey asserts five causes of action: an Americans with Disabilities Act ("ADA") claim for failure to make a reasonable accommodation available; an ADA claim for retaliation; two analogous state law claims; and a First Amendment claim under 42 U.S.C. § 1983. In July-September 2017, the parties cross-moved for summary judgment. Initially, the Court denied that motion, (ECF No. 233), as there seemed to be a question of fact as to whether a reasonable accommodation was available for plaintiff.
However, upon review of the parties' submissions in advance of trial, it became clear to the Court that, in reality, no question of fact exists. As will be discussed more fully below, the Clarkstown police department does not have positions that require only "light duty"—and it was never the case that it did. While three other officers have served in a light duty capacity, this position does not exist as a matter of course; when it has existed, it was for a previously-specified period of time, and in two instances, it was the specific result of a
For the reasons presented below, the Court GRANTS summary judgment in favor of defendants.
The Town of Clarkstown has three roles to which sergeants may be assigned for a particular shift: patrol sergeants, turnout sergeants, and, as particularly relevant here, desk sergeants. There is one desk sergeant per shift, and he or she "takes command of communications, takes command of the dispatch, . . . [and] [h]as responsibility for interfacing with lieutenants, the captains and chiefs during the day tours. It's the point person for the tour, but you're inside." (ECF No. 201-3, Dorfman Decl. in Supp. of Def.'s Mot. for Summ. J. ("Dorfman Decl."), Ex. C ("Garvey Dep.") at 63:5-11, 70:11-12.) The desk sergeant also supervises officers with perpetrators or suspects in the cell area. (
At certain times, however, when a police officer or sergeant is injured, the Town works with him or her to devise a specific resolution such that the officer may continue to work in some "light duty" capacity until he or she has healed.
Other injured sergeants and officers who required a "light duty" post were assigned the desk sergeant or desk officer roles for a longer-than-usual period of time (i.e., for more than one shift at a time). In at least one case, the assignment involved additional restrictions, such as an inability to sit for more than forty-five minutes at a time. Often, the specific accommodations would be coordinated pursuant to settlement agreements. Each instance of a "light duty" post presented by the parties has differed, as each was tailored to specific restrictions that arose from a particular officer's injury. The position of desk sergeant never existed as a permanent assignment for any officer—nor did any other "light duty" post.
For example, Sgt. No. 1
Separately, Sgt. No. 2 was given a light duty assignment under § 207-c due to line of duty injuries to both of his ears, which caused significant hearing loss. When Sgt. No. 2's doctor found that he was permanently disabled, he subsequently "filed for service retirement," remarking in his notice that it "was a pleasure to be of service to the residents of the Town of Clarkstown for the past 22 years." (ECF No. 225-7, Dorfman Decl., Ex. MMM.) The Town submitted a letter to the union noting that it did not offer any "permanent `light duty' positions and the filing of [Sgt. No. 2's] service retirement should in no way be interpreted . . . as [Sgt. No. 2] having voluntarily removed himself from the workforce." (ECF No. 225-9, Dorfman Decl., Ex. OOO.)
Police Officer No. 3 ("P.O. No. 3") also suffered a line-of-duty injury. Like Sgt. No. 1, he entered into a settlement agreement with the Town to continue his § 207-c status until he was granted a New York State disability retirement or was eligible for service retirement. Pursuant to his settlement agreement, P.O. No. 3 would only be ordered back to work when his disability ended or when he became capable of performing a light duty assignment. Like Sgt. Nos. 1 and 2, he was never adjudicated permanently disabled.
On January 17, 1994, Garvey was hired by the Town of Clarkstown as a police officer. At that time, he was fit for full duty—that is to say, he was able to perform all of the essential functions of a police officer. In 2004, Garvey was promoted to sergeant, a supervisory position within the department. On January 9, 2008, Garvey injured his left knee in the line of duty while making an arrest. Defendants accepted the injury as occurring in the line of duty under § 207-c, afforded Garvey disability benefits, and assumed responsibility for the medical costs associated with his left knee. (ECF No. 201-73, Dorfman Decl., Ex. XX ("Decision and Order of Hon. Gerald E. Loehr, dated February 21, 2013") at 2.) On July 20, 2008, Garvey underwent arthroscopic surgery on his left knee. (
Under the CBA between the Town and the Rockland County Patrolmen's Benevolent Association, Inc. ("PBA"), the Town could have Garvey medically examined from time to time to determine whether the disability had ceased or whether Garvey was able to physically perform his duties. (ECF No. 201-60, Dorfman Decl., Ex. KK at 15.) Accordingly, on April 5, 2010, Garvey was examined by Dr. John Mazella, a Board-certified orthopedic surgeon. Dr. Mazella concluded that Garvey had a pre-existing "gouty" condition in his left knee that was exacerbated by his injury on January 9, 2008, but that the line-of-duty injury had "resolved to status quo ante through the orthopedic treatment . . . and that [Garvey's] complaints of continuing pain were not supported by his physical condition." (Decision and Order of Hon. Gerald E. Loehr, dated February 21, 2013.)
In response, the Town notified Garvey on April 19, 2010 that he was to report for full duty on April 22, 2010—more than two years after the line-of-duty injury occurred—and that his § 207-c benefits were terminated. However, Garvey requested time to see his own doctor before returning to work. On April 26, 2010, the Town sent Garvey a letter notifying him that he could "start [his] return on transitional, restricted-duty status to allow [him] time to reacquaint [him]self with the relevant procedures and routines of [his] position." (
However, on May 26, 2010, Garvey had requested a § 207-c hearing; the Town denied the request on June 2, 2010. The PBA, pursuant to the CBA, then requested a hearing on Garvey's behalf to determine,
On January 7, 2012, the Arbitrator ruled that under the CBA, Garvey had the right to a § 207-c hearing. In accordance with the arbitrator's decision, a hearing officer was appointed to determine (1) whether Garvey was able to perform his regular police duties and (2) whether his left knee complaints are related to an injury in the line of duty.
At the time of the Arbitrator's ruling, Garvey had been serving as a desk sergeant for eighteen months (since May 2010) and he had received at least one positive performance evaluation from his supervisors. (Garvey Dep. at 78:9-81:22.) But after the Arbitrator's decision, Garvey took the position that he no longer had to report for restricted duty. (ECF No. 201-56, Dorfman Decl., Ex. GG.) This decision was not connected in any way with the condition of his knee injury. (Garvey Dep. 85:21-86:1.) Rather, it was Garvey's position that he was not required to work until the hearing was held and a conclusion was reached. Sullivan informed Garvey that if he failed to fulfill his light duty assignment, he would be considered absent from duty without proper authorization. (ECF No. 201-57, Dorfman Decl., Ex. HH.) Nevertheless, Garvey did not return to work.
Between March 23, 2012 and August 10, 2012, the § 207-c hearing was held over seven days. Garvey, Town representatives, three doctors, and a physical therapist testified. During those proceedings, Garvey testified that his knee condition was permanent and that he could not perform various functions of a police officer. (
The hearing officer ultimately determined that Garvey was permanently unable to perform regular police duties, but that this inability was the result of his pre-existing gout condition, rather than the January 9, 2008 line-of-duty incident. Notably, during the hearing, defendants offered Garvey a settlement similar to Sgt. No. 1's agreement.
On November 20, 2012, the Town accepted and adopted the hearing officer's Findings of Fact and Recommendations. (ECF No. 201-62, Dorfman Decl. Ex. MM.) In the same resolution, the Town terminated Garvey's § 207-c benefits, as the adjudicator had decided his knee condition was not connected to a line-of-duty injury. The Town further determined that the arbitrator's grant of the § 207-c hearing did not excuse Garvey from continuing the transitional light duty assignment he had received; accordingly, the leave time Garvey had used up was not re-credited as he had demanded.
As a result of the hearing, Garvey's attorney, Dennis Lynch, sent the Town's attorney, Amy Mele, a letter on November 8, 2012 requesting,
On Saturday, December 1, 2012 at 6:30 a.m., after almost eleven months of absence and without any prior notification, Garvey arrived at the police station and attempted to relieve the desk sergeant. He was informed that there was no position available for him. Sullivan went to the station to respond to Garvey's surprise grandstanding, and he advised Garvey that Garvey could make a formal request for a light duty position under General Order 215; Sullivan then sent Garvey home. Garvey maintains that his arrival at work was in response to the May 27, 2010 letter—which he had received 18 months earlier—ordering him back to work. (Garvey Dep. at 89:10-18.)
On December 4, 2012, Sullivan sent a memo to Garvey reminding him that the correct course of action—rather than simply showing up at the station and "attempt[ing] to order a working sergeant to stand down so [Garvey] could assume the desk"—was to request a temporary light duty assignment under General Order 215. (ECF No. 205-30, Marzolla Decl., Ex. CC.) Sullivan also noted that he would consider Garvey's previous request to return to work as a request under General Order 215, and informed him that such request requires "a doctor's note advising the nature of the injury, the duration that light duty will be required and any restrictions and limitations the doctor feels should be followed." Because Garvey's previously submitted doctor's note did not indicate a period of time, Sullivan would not consider his request. (
Also on December 4, 2012, the parties' lawyers were in communication. Mele notified Lynch that based on Garvey's testimony at the § 207-c hearing, he could not perform the essential functions of a police officer, including "taking resistant persons into custody, breaking up fights, carrying a distressed child, extracting accident victims from a motor vehicle or subduing a physically attacking person."
By December 7, 2012, Garvey's leave had depleted; he was accordingly removed from payroll and notified of a termination of his medical benefits. The next day, Sullivan sent Garvey a memo advising him that he was "
On December 18, 2012, Garvey commenced a proceeding in state court to annul the Town's November 20, 2012 Resolution. The New York Supreme Court denied that request but transferred the proceedings to the Appellate Division for determination of whether the hearing officer's findings were supported by the evidence. While that action was pending, Garvey filed this federal action on November 23, 2013. On June 24, 2015, the Appellate Division confirmed the hearing officer's determination, which held that there was
(ECF No. 201-74, Dorfman Decl., Ex. YY, Decision, Order & Judgment of the Appellate Division, at 4.)
Subsequently, on July 7, 2015, the Town notified Garvey that it intended to terminate his employment pursuant to Civil Service Law § 73, which states that "when an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability other than a disability resulting from occupational injury . . . his employment status may be terminated. . . ." (ECF No. 201-75, Dorfman Decl., Ex. ZZ.) (At this point, Garvey had been absent for more than three years due to an injury that had been adjudicated non-duty related, not including his two-year absence while he received § 207-c benefits between 2008-2010.) Garvey objected in a letter dated August 4, 2015, arguing,
Garvey challenged his termination in a letter on September 4, 2015, in which he argued he was "ready, willing and able to return to work"; he also demanded a post-termination hearing. After the Town responded that an article 78 hearing would be the appropriate vehicle, Garvey initiated an article 78 proceeding on December 10, 2015 in the New York Supreme Court. The basis of the new petition was that Garvey's disability was work-related, but even if it were not, he was fully fit to return to work and was also fit for what in his view constituted light duty. Garvey also argued that the Town violated the ADA and General Order 215, and that he was denied pre- and post-termination hearings.
The New York Supreme Court dismissed Garvey's petition, holding that the July 7, 2015 letter was sufficient notice of his termination—indeed, his attorneys had responded with a ten-page letter of their own, (ECF No. 205-41, Marzolla Decl., Ex. NN)—and that a post-termination hearing was not required, as petitioner had been adjudicated disabled and had not offered new evidence that he was able to return to full duty. "[S]ince Petitioner's position was that of a full time Sergeant and not some type of light-duty hybrid, absent a voluntary accommodation under General Order 215 or as mandated under the ADA, again, there is nothing to have a hearing about." (ECF No. 201-77, Dorfman Decl., Ex. BBB ("Decision and Order of Hon. Gerald E. Loehr, dated December 21, 2016") at 10.) Because a federal ADA action had already been commenced by Garvey, the Court declined to address the ADA question and dismissed the rest of the petition on the merits without prejudice.
The federal action, now pending for almost four-and-a-half years, was initially before Judge Karas. It was transferred to the undersigned on September 28, 2017.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact."
In making a determination on summary judgment, the court must "construe all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor."
Plaintiff has brought both discrimination and retaliation claims under the ADA, 42 U.S.C. §§ 12112(a), 12203(a). The ADA makes it unlawful for an employer, with respect to hiring or discharge, to "discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). In addition, the ADA prohibits employers from retaliating against an individual for "oppos[ing] any act or practice made unlawful" by the ADA. 42 U.S.C. § 12203(a). The ADA applies to employers; it does not confer individual liability.
To establish a prima facie case of discrimination based on failure to accommodate, a plaintiff must establish that (1) he is a person with a disability; (2) defendant had notice of his disability; (3) plaintiff could perform the essential functions of the job at issue with reasonable accommodation; and (4) defendant refused to make such accommodations.
The plaintiff bears the burdens of both production and persuasion as to "the existence of some accommodation that would allow [him] to perform the essential functions of [his] employment, including the existence of a vacant position for which [he] is qualified, as well as "whether the costs of the accommodation do not on their face obviously exceed the benefits."
Assuming plaintiff can make out a prima facie case (and this Court does not find that plaintiff here can), the burden would shift to defendant under the analysis of
"The ADA envisions an `interactive process' by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated."
"Nevertheless, an employee may not recover based on his employer's failure to engage in an interactive process if he cannot show that a reasonable accommodation existed at the time of his dismissal."
"The ADA makes it unlawful for an employer `to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by this chapter'" or to "discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter."
To establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected activity; (2) defendant was aware of that activity; (3) he suffered an adverse employment action; and (4) there was a causal connection between that protected activity and the adverse employment action.
"To state a prima facie claim of First Amendment retaliation under Section 1983, [a plaintiff] must offer some tangible proof that 1) [his] speech was constitutionally protected; 2) [he] suffered an adverse employment action; and 3) a causal relationship between the two existed in that the speech was a substantial or motivating factor for the adverse employment action."
Speech addresses a matter of public concern when it may be "`fairly considered as relating to any matter of political, social, or other concern to the community.'"
In other words, "the court should focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose."
"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation."
"The state of mind of a party that destroys evidence is a major factor in determining whether an adverse inference is the appropriate sanction."
By contrast, "where the destruction was merely negligent," plaintiff must also "demonstrate that the destroyed evidence would have been favorable to" him, "since in those cases it cannot be inferred from the conduct of the spoliator that the evidence would even have been harmful to him."
To establish the relevance of destroyed documents, plaintiff must "demonstrate through extrinsic evidence, such as other existing documents or deposition testimony, that a reasonable jury could find that the missing [evidence] would have been favorable to his claims."
Garvey has failed to demonstrate the existence of a vacant position which he was able to fill. Furthermore, he—not defendants—failed to engage in the interactive process required by the ADA. As such, his claim under the ADA for discrimination on the basis of failure to accommodate fails as a matter of law. Second, he has not established that there was a causal connection between any adverse employment action and any protected activity on his part; as such, his retaliation claim also fails. Accordingly, the Court grants summary judgment to defendants on both ADA claims.
There is simply no evidence in the record that a desk sergeant position existed in the way Garvey sought to have it exist. Rather, the position existed on a case-by-case basis for officers with impermanent disabilities: the Town would work with injured officers to identify a "light duty" position while they healed or until they reached retirement. As such, there was never an "open slot" for a light duty position, which Garvey might have been able to fill. Garvey has sought to transform a temporary light duty assignment provided to other officers, often pursuant to a settlement, into an open position with reduced responsibilities and physical demands—this is not what the ADA requires. Nor does it require defendants "to create new jobs or reassign disabled employees if no positions are vacant."
Garvey maintains that the Town's accommodations for Sgt. No. 1, Sgt. No. 2, and P.O. No. 3 demonstrate that a vacant position existed for him. But this is not the case. First, none of the others' situations were analogous to Garvey's. Sgt. No. 1 and P.O. No. 3 both received accommodations pursuant to settlements. Accordingly, their "light duty" roles cannot be evidence of the existence of a permanent position; rather, they were allowed as terms of settlement agreements.
Moreover, even if their situations did apply, the fact that someone else occupied a light-duty position does not mean that a similar position was available for Garvey to fill. Garvey argues that Sgt. No. 1 was "contemporaneously vacating his light duty Desk Sergeant assignment in and around the time Defendants constructively terminated Plaintiff (i.e., 1/2013)." (ECF No. 211, Pl.'s Mem. of Law in Opp. to Def.'s Mots. for Summ. J. and in Supp. of Pl.'s Cross Mot. for Partial Summ. J. ("Pl.'s Mem. in Opp.") at 3.) However, as noted, Sgt. No. 1 was not occupying a position that typically existed within the apartment; rather, he was acting in a light duty capacity pursuant to a settlement agreement with the Town. It is not as if, once Sgt. No. 1 retired, there would be a vacant position that defendants would need to fill. Rather, once Sgt. No. 1 retired, the department could simply return to its usual state—which includes desk sergeants who have no physical restrictions. Additionally, P.O. No. 3's settlement was not signed until October 16, 2014—well after this case was filed. (ECF No. 205-46, Marzolla Decl., Ex. SS.)
The Town is not "obligated to create a new light-duty position for a disabled employee or make permanent previously temporary light-duty positions. Moreover, lax enforcement of the temporary nature of temporary light-duty assignments does not transform such assignments into permanent positions."
Furthermore, Garvey did not demonstrate that he engaged in the ADA's "interactive process" in good faith. Rather, the post-hearing letters and emails submitted by both parties demonstrate that the Town repeatedly asked for information as to Garvey's disability as well as a suggestion as to which position might be a reasonable accommodation. Rather than respond to these questions, Garvey accused the Town of retaliation, threatened legal action, and refused to engage. His sudden appearance at the police station on December 1, 2012—after an eleven-month absence—was no more than grandstanding in response to being notified that he was due to run out of leave. Showing up at 6:30 a.m. on a Saturday is not an attempt to engage; had Garvey wanted to negotiate, he would have taken Sullivan's suggestion and set up a time to discuss options.
Similarly, Garvey has failed to demonstrate that defendants retaliated against him for exercising his rights under the ADA. Garvey argues that he engaged in a protected activity by requesting a reasonable accommodation in the form of a light duty position, and that defendants took adverse action by "requiring more of Sgt. Garvey (in the form of a doctor's note giving the disability's end [date]) than was required under the [department's] express written policy or had ever been required of anyone else during his tenure."
As discussed above, Sullivan instructed Garvey to submit a request for a light duty position under General Order 215, which requires a doctor's note that specifies how long an injury or disability is expected to last. While General Order 215 does not list specific requirements that must accompany a sergeant or officer's request, it does leave the decision to the "complete discretion" of the Chief of Police. Certainly, this leaves room for the Chief to require certain documentation with requests. Garvey argues that a doctor's note explaining the expected duration of a disability had never been required of anyone else, but he offers no evidence to support this assertion. And even if it were the case, it could be the case that, consistent with General Order 215, the Chief may require documentation from some officers and not others, based upon the circumstances presented.
Additionally, while not clearly stated, Garvey alludes to a claim that defendants took adverse action by denying his request for a light duty position. As discussed at length above, this denial was proper, as no reasonable accommodation existed for Garvey.
Accordingly, the Court grants summary judgment on Garvey's ADA claims in favor of defendants.
Garvey has also filed a claim under 42 U.S.C. § 1983 for violation of his First Amendment rights. He identifies the following activities as protected by the First Amendment: (1) filing a union grievance; (2) testifying at his GML § 207-c hearing; and (3) filing the federal complaint. (Pl.'s Mem. in Opp. at 37-40.) None of these actions give rise to a First Amendment retaliation claim. Government employees have First Amendment rights when speaking on matters of public concern—all of the speech and actions identified by Garvey focus on "matters personal to the employee."
Citing
Even if Garvey's speech were protected by the First Amendment, he has not established that his alleged "speech" was a substantial factor in any adverse employment action. Garvey was not terminated until 2015—two years after the filing of this federal action, and three-five years after the bulk of the events at issue. Defendants repeatedly directed him to report for a light duty position until 2012; at that time, his disability status had been adjudicated, and as discussed, defendants were within their rights to inform him that no position was available. There is no evidence in the record that his termination—or any other action by defendants—was motivated by Garvey's grievance, testimony, or federal lawsuit. Thus, judgment on Garvey's § 1983 claim is granted in favor of defendants.
In his cross-motion for summary judgment, Garvey argues that defendants have engaged in "massive spoliation of evidence." (Mem. in Opp. at 34.) Specifically, Garvey asserts that "despite their discovery sanctions,"
No finding of spoliation was made during the pendency of this action, and in any case, the spoliation assertion is inadequate on the merits. Garvey fails to proffer facts supporting the requisite intent for a spoliation claim. He claims that evidence of intent "is found in the "actions of the Police Department in allowing Police Chief Sullivan himself to investigate" the disclosure of personal information about Garvey to a local newspaper "when the Chief had personal involvement in the matter, as the communication with the local news reporter in Spring 2016 appears to have been the purpose behind why the Chief put his thoughts about Plaintiff in written form. The Chief assumed control over that investigation and intentionally limited that investigation to avoid disclosure of his own misconduct in scheming to leak the preferred story to the press. The Chief thus only documented `evidence' that he wanted discovered." (ECF No. 230, Pl.'s Reply Mem. of Law in Opp. to Def.s' Mots. for Summ. J. and in Further Supp. Of Pl.'s Cross Mot. for Partial Summ. J. ("Pl.'s Reply Mem.") at 20-21.) Additionally, Garvey argues, other police captains severed the police departments with a car wash of which Garvey was a coowner "because they did not want to do any business with any entity in which Plaintiff could benefit, as owner." (
Even if there had been deletion of evidence, that does not, on its own, support a motion for spoliation sanctions. Garvey has not demonstrated that the deleted information was relevant to his claims in this litigation, and he has not demonstrated—or even suggested—defendants had the requisite intent. Accordingly, this application also fails.
Having granted summary judgment in favor of defendants on all of Garvey's federal claims, the Court declines to exercise supplemental jurisdiction over his remaining state law claims.
For the reasons stated above, the Court GRANTS summary judgment in favor of defendants. The Clerk of Court is directed to enter judgment and terminate case 13-cv-8305.
SO ORDERED.
There are numerous instances where plaintiff neither admits nor denies a fact, but rather (1) adds additional facts, (2) quibbles with defendants' characterization of the fact, (3) argues a fact is immaterial to resolution of the motion for summary judgment, or (4) makes legal arguments. There are also numerous instances where, although plaintiff "denies" a fact in form, he does not actually controvert the fact in substance. In all such instances, defendants' asserted facts are deemed admitted to the extent they are properly supported and to the extent plaintiff's dispute is not in fact supported by the exhibits he cites.
Garvey did not plead claims of post-termination retaliation in his complaint; indeed, he filed his complaint almost two years before he was terminated. These claims are asserted only through the Feerick Declaration, which was submitted in opposition to the motion for summary judgment, in support of a spoliation motion, and after the close of discovery. None of the allegations are mentioned in plaintiff's Rule 56.1 Statement or in his memorandum of law. On this basis as well, plaintiff cannot succeed on these retaliation claims. Moreover, the assertions in the Feerick Declaration are unsupported by evidence connecting any protected action by Garvey—under the ADA or the First Amendment—to adverse actions by defendants. Conclusory statements alleging libel or slander are not enough.
