Sherman v. The County of Suffolk et al
Filing
73
MEMORANDUM OF DECISION AND ORDER denying 60 Motion for Summary Judgment; In sum, the Court denies the Defendants motion for summary judgment as to (1) the Plaintiffs claim of discrimination in violation of the ADA against Suffolk County and (2 ) the Plaintiffs claim of retaliation in violation of the ADA against Suffolk County, and (3) the Plaintiffs state law claims sounding in in disability and age discrimination in violation of the NYSHRL against all the Defendants, except the Suffolk C ounty Sherriffs Department. The motion is otherwise granted. The Clerk of the Court is respectfully directed to terminate the Suffolk County Sheriffs Department as a party to this action. The Suffolk County Sheriff's Department terminated. So Ordered by Judge Arthur D. Spatt on 12/29/2014. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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STEVEN SHERMAN,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
11-cv-2528 (ADS)(SIL)
-againstTHE COUNTY OF SUFFOLK, THE SUFFOLK
COUNTY SHERIFF’S DEPARTMENT, C.O.
TSCHANTRE, C.O. HEMMENDINGER,
DEPUTY SHERIFF WEICK, and DEPUTY
SHERIFF KORTE,
Defendants.
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APPEARANCES:
Cronin & Byczek LLP
Attorneys for the Plaintiff
1983 Marcus Avenue
Suite C-120
New Hyde Park, NY 11042
By:
Linda Cronin, Esq.
Dominick Peter Revellino, Esq.
Mariam Ahmad, Esq.
Moshe C. Bobker, Esq.
Shahin Mashhadian, Esq.
Susan P. Bernstein, Esq., Of Counsel
Suffolk County Attorney’s Office
Attorneys for the Defendants
H. Lee Dennison Building, 5th Floor
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788-4311
By:
Elaine M. Barraga, Assistant County Attorney
SPATT, District Judge.
On May 26, 2011, the Plaintiff Steven Sherman (the “Plaintiff”) filed the present
action against the Defendants, his former employers the County of Suffolk (“Suffolk
County”); the Suffolk County Sheriff’s Department, and his former supervisors a
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Corrections Officer with the surname Tschantre (“Tschantre”), a Corrections Officer with
the surname Hemmendinger (“Hemmendinger”), Deputy Sheriff William Weick
(Weick”), and a Deputy Sheriff with the surname Korte (“Korte”)(together the
“Individual Defendants” and collectively the “Defendants”). The Plaintiff asserted
violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”);
the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”); and
New York Executive Law § 296 (“NYSHRL”).
On October 26, 2011, the Plaintiff filed an amended complaint, this time for
violations of the ADA, the NYSHRL, and 42 U.S.C. § 1983.
Following the completion of discovery, on March 27, 2014, the Defendants
moved pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56 for summary
judgment dismissing the amended complaint.
For the reasons set forth, the Court grants in part and denies in part the motion for
summary judgment.
I.
BACKGROUND
A. Factual Background
Unless stated otherwise, the following facts are drawn from the parties’ Rule 56.1
Statements and attached exhibits, and have been construed in a light most favorable to the
non-moving party, the Plaintiff. Triable issues of fact are noted.
In January 2010, the Plaintiff received and accepted a conditional job offer as a
Correction Officer I from the Suffolk County Sherriff’s Department. The duties of a
Correction Officer I include guarding prisoners and maintaining order and security at
Suffolk County detention and correctional facilities. Correction Officers must have a
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strong knowledge of the rules and regulations of the Suffolk County Correctional
facilities, and are expected to possess intelligence, communicative ability, and physical
and mental fitness commensurate with a position entailing risk to, and responsibility over,
the safety of self and others. Prior to entering the Correction Officers Academy, the
Plaintiff understood that his offer was conditional upon passing established academic and
physical training requirements. The Plaintiff commenced the Academy’s thirteen-week
training program in January 2010.
The following events are structured in terms of events purportedly related to the
alleged age discrimination, the alleged disability discrimination, the alleged hostile work
environment, the Graduation at the Academy, and the Plaintiff’s time both during and
after his work at the Suffolk County Correctional Facility. These events, of course,
overlap in certain respects.
B. The Alleged Age Discrimination Claim
At 55 years of age, the Plaintiff was the oldest recruit in his class. It is not
uncommon for Correction Officer I recruit classes to contain members over the age of
fifty and there is no maximum age limit for the position of Correction Officer I.
The Plaintiff alleges that on his second day at the Academy, Corrections Officer
Tschantre asked the recruits who was the oldest in the class, and when he raised his hand,
she remarked to him, “aren’t you glad there’s no age limit?”
C. The Alleged Disability Discrimination Claim
Recruits participate in physical training sessions where they do basic calisthenics.
The Defendants assert that the “Mountain Climber” is a common callisthenic exercise
generally administered to all academy classes throughout training. The Plaintiff asserts
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that both Cos. Tschantre and Hemmendinger considered the “Mountain Climber” an
advanced exercise and could not recall such early administration to recruits.
On January 27, 2010, the Plaintiff injured his quad muscle in his left leg on the
rubber-matted drill floor while doing the “Mountain Climber.” The Plaintiff was able to
change into his Academy uniform despite feeling pain in his leg. That day, the Plaintiff
continued with the educational portion of the Academy training. The Plaintiff was also
able to walk up the stairs to the second floor of the Academy.
On the day of the injury, the Plaintiff did not say anything about it to any
instructor or recruit, and did not contact a physician. The Plaintiff maintains that he
failed to do so because he was then unaware of the severity of the leg injury. The
Plaintiff drove home that afternoon, and self-treated himself with pain medicine.
The following day, the Plaintiff visited his personal physician, who diagnosed
him with a quad strain. The Plaintiff asked his physician if he could commence physical
therapy as soon as possible.
On February 4, 2010, the Plaintiff was called to the command office to discuss his
injury. The Plaintiff alleges that on his way to the office he ran into Tschantre and she
apologized for what she considered to be the inappropriately early administration of the
mountain climber.
At that meeting, Suffolk County Lt. L’Hommedeau discussed with the Plaintiff
his option, in the wake of the injury, to leave and then rejoin the Academy in the
following class of recruits. The parties dispute whether L’Hommedeau actively
encouraged the Plaintiff to exercise this option. The Plaintiff, unsure of when the next
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class would be held, remained enrolled at the Academy and informed his supervisors that
he had commenced physical therapy.
L’Hommedeau subsequently assured the Plaintiff that the Defendants would do
“whatever they could to help him recover,” including allowing him to use the elevator
and accommodating any extra training he might need to do. L’Hommedeau told the
Plaintiff “we’ll work with you; we’ll be there for you. We’ll do everything we can to get
you through the [A]cademy. I’m going to allow you to use the elevator to let your leg
heal, and Tschantre will be there for you. Tschrante would say I’ll be there for you. [sic].
If you need anything just ask me, you know I will help you through all the physicalness
[sic] you have to do and extra training and everything else. I’ll be there for you . . .” (The
Plaintiff Dep., at 63.) The Plaintiff did not participate in physical fitness training for the
remainder of the Academy program.
On February 11, 2010, the Plaintiff spoke to an Investigator with the surname
Ponticello at the Medical Evaluation Unit. The Plaintiff alleges that Ponticello tried to
persuade him to deny his injury and rejoin the physical training, saying that the Academy
would “come after him because of his age.”
On February 15, 2010, the Plaintiff submitted a letter from his physical therapist
stating that failure to abstain from strenuous activity during the next 4-6 weeks could
result in further injury.
On February 22, 2010, the Plaintiff submitted a letter to Tschantre asking her for
help and advice on rehabilitating his injury. This letter went unanswered.
On April 2, 2010, the Plaintiff underwent an MRI performed on his leg. The test
results showed no significant tear, but bursitis of the hip and tendinitis as a result, the
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Plaintiff contends, of being forced to use the stairs during the period following his injury.
In the period between the injury and this evaluation, the Plaintiff successfully climbed
stairs, changed in and out of uniform, and drove, though he contends that pain frequently
accompanied these activities. The Plaintiff considered his leg injury a debilitating
disability for life. The Defendants disagreed.
In July 2010, the Plaintiff participated in and completed firearms training, which
included running. The Defendants maintain that this fact undermines any alleged claim
of disability. The Plaintiff testified that he did not go against his physician’s orders when
participating in firearms training because “the leg was feeling well enough for [him] to
attempt to do it, so [he] did it.” (Id. at 65.)
D. The Alleged Hostile Work Environment Claim
The Plaintiff understood that training in the Academy was conducted in a
paramilitary environment.
That said, according to the Plaintiff, beginning on March 5, 2010, he began to feel
isolated from his fellow recruits. For example, on March 15, 2010, each recruit except
the Plaintiff received handcuffs. The Defendants assert that the Plaintiff did not receive
handcuffs because he did not participate in handcuff training.
The Plaintiff counters that the Defendants’ discriminatory animus on the basis of
age and disability led to the decision not to give him handcuffs. In support of this
assertion, the Plaintiff notes that the Defendants gave handcuffs to a recruit Paula
DiCarlo, aged 39, despite her failure to participate in handcuff training. The Plaintiff
asserts that he missed the handcuff training because he had been called to the Command
Office.
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Also, on March 15, 2010, the Plaintiff was called to the Command Office, where
Weick allegedly chastised the Plaintiff for filing a form 6 standard report improperly and
eleven days past the requested date. The form was returned to the Plaintiff stamped “Do
Over.”
On March 18, 2010, Korte spoke with the Plaintiff in the Command Office. The
Plaintiff alleges that Korte berated him, and this incident was overheard by Darrell Mayo
and Timothy Cable, other recruits, with whom he later discussed the incident.
Later that day, the Plaintiff was directed to copy military protocol regarding
proper treatment of superior officers from the Academy guidebook. The Defendants
contend that this was not punishment, but standard training procedure. The Plaintiff
believes the exercise was intended to establish a “paper trail” to falsely document poor
performance and to later justify his termination.
However, Mayo testified that the instructors at the Academy treated the Plaintiff
the same as all of the other recruits and were trying to “get us to learn different things,
and they were using team building skills to get everyone to learn and adapt to a new job.”
(Mayo Dep., at 24.) Mayo further testified that he did not recall instructors saying
anything different to the Plaintiff than they did to other recruits or making comments with
respect to the Plaintiff’s age.
E. The Internal Complaint of Discrimination
On March 22, 2010, the Plaintiff filed an informal complaint, in writing, to Bob
Draffin of Personnel Relations. (Defs’ Exh. K.) In that letter, the Plaintiff alleges that he
was “being treated in an unfair manner because of my age and my injury.” (Id.) The
discrimination apparently ceased after filing of the complaint.
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On March 26, 2010, the Plaintiff withdrew the complaint, in writing, so as not
jeopardize the Individual Defendants’ careers.
On April 8, 2010, the Plaintiff wrote a letter to Debra Hallock, a superior,
informing her of his reasons for not pursuing the discrimination complaint further and
expressing to her his belief that the situation was resolved. Specifically, the Plaintiff
wrote that “[it appears that the situation we spoke of has remedied itself, and I believe
that the outcome will be satisfactory for all parties involved . . . I do not wish to pursue
this further, unless the situation presents itself again.” (Pl.’s Exh. L.).
F. The Graduation
On April 23, 2010, the date of Academy Graduation, the Plaintiff had not
completed his physical training requirements. The Plaintiff was permitted to attend the
ceremony in uniform, but was not allowed to participate within the proceedings. Rather,
the Plaintiff sat in the audience with his wife. The Plaintiff contends that his exclusion
from the proceedings on grounds of medical restriction was unprecedented, and reflected
a discriminatory animus against him.
The Plaintiff further alleges that he was required to climb stairs in order to pose
with his fellow recruits for a graduation picture, in contravention of medical orders and
Lt. L’Hommedeau’s authorization to allow him to abstain from using stairs. The
Defendants maintain that he did so voluntarily.
The Plaintiff further states that he only received his badge after having to beg for
it, causing him further humiliation. The Defendants characterize the conferral of a badge
and diploma on the Plaintiff prior to completion of the physical requirements of the
Academy and New York State as a “courtesy.”
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The Plaintiff was granted an extension of a year to satisfy his physical training
requirements.
G. The Suffolk County Correctional Facility
On April 27, 2010, the Plaintiff commenced his position at the Suffolk County
Correctional Facility, working on “light duty” at Station 1. While working at the
correctional facility, the Plaintiff wore a knee brace but did not tell his superior officers
of this fact for fear of reprisals.
On June 30, 2010, the Plaintiff was cleared to return to full duty. The Plaintiff
alleges that, throughout the period between April and August of 2010, he felt incapable of
fully performing his duties due to increasingly severe pain in his left knee stemming from
his injury. The Plaintiff states that he has medical documentation linking this pain to the
injury.
However, according to the Plaintiff, Lt. L’ Hommedeau ignored this
documentation and commanded him to complete the standard 1.5 mile run required of all
recruits. The Plaintiff had failed to complete the run during training due to his injury and
expected three to four months of a probationary grace period to fulfill the requirement.
The Plaintiff alleges that L’Hommedeau reneged on his promise to maintain this grace
period. The Plaintiff states that, although he felt capable of running short bursts and
dealing with inmates, he was not capable of running 1.5 miles, and had been trying, but
failing, to do so in physical therapy. The Plaintiff attributes the lack of progress to a
regression of his injury as a result of being required to use Academy stairs. However, the
Plaintiff admitted that considering that he presented himself to the Defendants as being
9
able to work full duty, it was a fair request for the Defendants to ask him to complete the
1.5 mile run. (Pl Dep., at 120.)
On June 22, 2010, the Plaintiff received an evaluation of his work performance
from Evaluator C.O. Chris Lombardo (“Lombardo”). Lombardo indicated that the
Plaintiff’s performance was deficient and that he required remedial training and reevaluation in a number of categories crucial to the satisfactory fulfillment of his duties.
In particular, Lombardo reported that the Plaintiff needed to “try to understand the risk
[and] danger associated with his new career” and noted his “deficien[cy] in some of the
most basic elements necessary to perform his duties safely and effectively.” (Barraga
Decl., Exh. W.) Lombardo described the evaluation rating to be a product of “lack of
hands on training in the facility.” (Id.) The Plaintiff contends that the unfavorable
evaluation was, in fact, an attempt to secure more training for him.
On June 30, 2010, the Plaintiff received an evaluation of his work performance
from Evaluator C.O. Kenneth Selg (“Selg”). Selg indicated that the Plaintiff’s
performances was deficient in basic policies and procedures and lacked the stressmanagement and command presence necessary to exercise proper control over inmates.
In particular, Selg reported that the Plaintiff required “better working knowledge of
department policies and procedures; [that he] tends to repeat mistakes; [that he] tends to
diminish under stress and seems to be overwhelmed at times; [that he] doesn’t seem to
use the appropriate level of command voice or physical presence during inmate
movement such as yard rehab programs and courts.” (Id., Exh. X.)
On July 20, 2010, the Plaintiff received a letter from the Academy requesting that
he complete the physical training requirements.
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In August 2010, the Plaintiff’s physician supplied a note to the Defendants
indicating that the Plaintiff could not complete the required mile and half run and could
not complete the physical part of the Academy at that time.
On October 7, 2010, the Plaintiff arrived home from work, when three officers
approached and informed him of his termination. The Plaintiff alleges that he was
terminated due to his age and alleged disability.
H. Post-Correctional Officer Events
Beginning on March 26, 2012, the Plaintiff began an anti-depressant treatment
regimen under the care of his therapist. He attributes his need for anti-depressants in part
to the alleged discrimination he faced during his time at the Suffolk County Correctional
Facilities. By June 11, 2012, the Plaintiff’s therapist reported that the Plaintiff had
indicated that he was “less depressed and is able to manage his anxiety. Although [the
Plaintiff] periodically experiences moments of doubt and concerns over ‘losing the
lawsuit’ he remains focused on what he has control over [and] is able to manage.” (Id.,
Exh. Y.)
The Plaintiff ultimately obtained employment as an assistant supervisor at Park
House, where he was responsible for monitoring both staff and psychiatrically ill patients.
The Plaintiff held this position for ten or eleven months. This suit followed.
II.
DISCUSSION
A. The Claims Against the Suffolk County Sherriff’s Department
“[T]he Suffolk County Sheriff’s Department . . . is not a suable entity and claims
against it are duplicative of those against the County.” Hubbs v. Cnty. of Suffolk, No. 11CV-6353 (JS)(WDW), 2014 WL 2573393, at *7 (E.D.N.Y. June 9, 2014); see Hayes v.
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Cnty. of Sullivan, 853 F. Supp. 2d 400, 438 (S.D.N.Y. 2012)(finding that the Sullivan
County Sheriff's Department is not a suable entity); Melendez v. Nassau Cnty., No. 10–
CV–2516 (SJF)(WDW), 2010 WL 3748743, at *5 (E.D.N.Y. Sept.17, 2010)(finding that
the Nassau County Sheriff’s Department Division of Correction is not a suable entity);
Barreto v. Suffolk Cnty., No. 10–CV–0028 (JS)(AKT), 2010 WL 301949, at *2
(E.D.N.Y. Jan. 20, 2010)(finding that the Suffolk County Sheriff’s Department is not a
suable entity). Accordingly, all claims against the Suffolk County Sherriff’s Department
are dismissed.
B. The Legal Standard on Summary Judgment
Summary judgment may not be granted unless all of the submissions taken
together “show[ ] 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 burden of demonstrating the absence of a material factual question, and in making
this determination, the court must view all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Nunn v. Mass. Cas.
Ins. Co., 758 F.3d 109, 114 n. 4 (2d Cir. 2014). Once the moving party has asserted facts
showing that the non-movant's claims cannot be sustained, the opposing party must set
out specific facts showing a genuine issue for trial, and cannot rely merely on allegations
or denials contained in the pleadings. See Fed. R. Civ. P. 56(c); accord Fabrikant v.
French, 691 F.3d 193, 205 (2d Cir. 2012). “[C]onclusory statements, conjecture, and
inadmissible evidence are insufficient to defeat summary judgment.” Ridinger v. Dow
Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir. 2011)(citation omitted).
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In cases involving claims of employment discrimination, “an extra measure of
caution is merited” in granting summary judgment because “direct evidence of
discriminatory intent is rare and such intent often must be inferred from circumstantial
evidence found in affidavits and depositions.” Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 603 (2d Cir. 2006)(citation omitted). Nonetheless, “a plaintiff must provide
more than conclusory allegations to resist a motion for summary judgment.” Holcomb v.
Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). Ultimately, the test for summary judgment
is whether “a reasonable jury could return a verdict for the nonmoving party.” Nunn, 758
F.3d at 114 n. 4 (citation omitted).
C. There is No Individual Liability for ADA Discrimination or Retaliation Claims
Title I of the ADA prohibits disability discrimination by a covered entity, such as
an employer, employment agency, labor organization, or joint labor-management
committee. 42 U.S.C. §§ 12111(2), 12112(a). The ADA defines an “employer” as “a
person engaged in an industry affecting commerce who has 15 or more employees . . .
and any agent of such person.” 42 U.S.C. § 12111(5)(A).
Because “Title VII of the Civil Rights Act of 1964 defines ‘employer’ similarly to
the ADA, courts in this Circuit have consistently applied the Title VII definition of
‘employer’ to the ADA.” Ivanov v. New York City Transit Auth., No. 13 CIV. 4280
(PKC), 2014 WL 2600230, at *5 (S.D.N.Y. June 5, 2014). Under Title VII, an individual
employee is not an “employer,” and may not be held liable for discrimination. Tomka v.
Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995), abrogated on other grounds by
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d
13
662 (1998). “Because an individual is not an ‘employer’ under Title VII, an individual is
also not an ‘employer’ under the ADA and, therefore, may not be liable for disability
discrimination.” Ivanov, 2014 WL 2600230, at *5; Corr v. MTA Long Island Bus, 27 F.
Supp. 2d 359, 370 (E.D.N.Y. 1998)(“In light of Tomka, and the overwhelming authority
in the Second Circuit construing Tomka as prohibiting individual liability under the
ADA, Plaintiff’s ADA claim against [individual defendants] must be . . . dismissed.”),
aff’d, No. 98–9417, 1999 WL 980960, at *2 (2d Cir. Oct.7, 1999)(“We also agree with
the district court that . . . there is no right of recovery against individual defendants under
the ADA.” (citing Tomka, 66 F.3d at 1314)).
Similarly, an individual may not be liable under the retaliation provision of the
ADA. Because the remedial provisions of Title VII do not provide for individual
liability, “it follows that, in the context of employment discrimination, the retaliation
provision of the ADA, which explicitly borrows the remedies set forth in [Title VII],
cannot provide for individual liability.” Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir.
2010); see also Tomka, 66 F.3d at 1314 (no individual liability under Title VII).
Accordingly, that part of the Defendants’ motion for summary judgment
dismissing the Plaintiff’s ADA discrimination and retaliation claims against the
Individual Defendants is granted.
D. The Plaintiff’s Discrimination Claim Under the ADA
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA
14
defines discrimination on the basis of disability as, among other things, “limiting,
segregating, or classifying a[n] . . . employee in a way that adversely affects the
opportunities or status of such applicant or employee because of the disability of such . . .
employee.” 42 U.S.C. § 12112.
The plaintiff “bears the initial burden of proving by a preponderance of the
evidence a prima facie case of discrimination.” Heyman v. Queen Vill. Comm. for
Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.
1999)(italics added); see also Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 383
(2d Cir. 1996)(“A plaintiff who raises a disability discrimination claim bears the initial
burden of establishing a prima facie case.”)(italics added). “To make out a prima facie
case, a plaintiff must show that (1) the employer is subject to the ADA; (2) the plaintiff
was a person with a disability within the meaning of the ADA; (3) the plaintiff was
otherwise qualified to perform the essential functions of her job, with or without
reasonable accommodation; and (4) the plaintiff suffered adverse employment action
because of her disability.” Morris v. Town of Islip, No. 12-CV-2984 (JFB)(SIL), 2014
WL 4700227, at *8 (E.D.N.Y. Sept. 22, 2014)(italics added); see Shannon v. N.Y.C.
Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003)(citing Ryan v. Grae & Rybicki, P. C., 135
F.3d 867, 869–70 (2d Cir. 1998)).
Here, the Defendants do not argue that Suffolk County is not subject to the ADA
or that Suffolk County is not liable for the wrongful acts of its agents such as the
Individual Defendants when acting within the scope of their authority. Neither do the
Defendants argue that the Plaintiff did not suffer an adverse employment action in the
form of termination of his employment. Rather, the Defendants contend that the Plaintiff
15
did not suffer from a “disability,” actual or perceived by them, as defined by the ADA;
that he was qualified for the position of Corrections Officer I with or without reasonable
accommodation; or that he was terminated as a result of any such “disability.”
Although not extensively argued by the parties, the Court pauses to consider
whether there were any additional “adverse employment actions” taken against the
Plaintiff. A plaintiff suffers an “adverse employment action” under the ADA when “he
or she endures a ‘materially adverse change’ in the terms and conditions of employment.”
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)(quoting
Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)). A
materially adverse change is a change in working conditions that is “more disruptive than
a mere inconvenience or an alteration of job responsibilities.” Galabya, 202 F.3d at 640
(quoting Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.
1993))(internal quotation marks omitted). “Examples of materially adverse employment
actions include ‘termination of employment, a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a material loss of benefits, [and] significantly
diminished material responsibilities. . . .’” Feingold v. New York, 366 F.3d 138, 152 (2d
Cir. 2004)(quoting Galabya, 202 F.3d at 640).
In this case, the Court finds that, aside from his termination of employment with
the Suffolk County Sheriff’s Office, the Plaintiff did not suffer any “adverse employment
action.” In this regard, the Court finds that any mistreatment of the Plaintiff with regard
to the graduation ceremony did not materially alter the terms and conditions of his
employment. Nor, in the Court’s view, on this record, did the requirement that the
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Plaintiff use the stairway of the Academy, instead of an elevator, rise to the level of an
“adverse employment action.”
While, in certain circumstances, the Court could envision a requirement to use
stairs instead of an elevator as an “adverse employment action,” the Court declines to so
find on this record, particularly given that the Plaintiff concedes that the use of the
stairway was part of his training and he did not object to this. Notably, the Plaintiff does
not bring a “failure to accommodate” claim under the ADA. In any event, “[w]hile
courts may consider the underlying conduct of an alleged failure to accommodate, a
failure to accommodate, by itself, is not sufficient for purposes of establishing an adverse
employment action.” Gallagher v. Town of Fairfield, No. 3:10-CV-1270 (CFD), 2011
WL 3563160, at *5 (D. Conn. Aug. 15, 2011).
Having concluded that the only viable “adverse employment action” would be the
termination of the Plaintiff’s employment, the Court turns to whether a genuine issue of
material fact exists as to whether the Plaintiff had a “disability” within the meaning of the
ADA. The ADA Amendment Act of 2008 (“ADAAA”), Pub. L. No. 110–325, 112 Stat.
3553 (2008)(codified as amended at 42 U.S.C. §§ 12101–12102 (1990)) defines
“disability” as:
(A) a physical or mental impairment that substantially limits one or more major
life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(1).
In this case, the Plaintiff contends that he had a “disability” under the ADA
17
because the Defendants regarded him as having a physical impairment that substantially
limited one or more major life activities.
Prior to the passage of the ADAAA, a plaintiff was required to show that his or
her perceived disability was one that “substantially limited a major life activity.” Jordan
v. Forfeiture Support Associates, 928 F. Supp. 2d 588, 605 (E.D.N.Y. 2013). However,
the ADAA set out a more lenient standard for determining whether an individual is
regarded as disabled under the ADA: “An individual meets the requirement of ‘being
regarded as having such an impairment’ if the individual establishes that he or she has
been subjected to an action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” Id. (quoting 42 U.S.C. § 12102(3)(A)).
Therefore, following passage of the ADAAA, a plaintiff need not show that he or she had
a condition that “substantially limited a major life activity.” Id. (quoting 42 U.S.C. §
12102(3)(B))
Rather, he or she need only show that the employer perceived her as being
disabled and that the impairment was not “minor” or “transitory,” meaning that the
impairment has “an actual or expected duration of 6 months or less.” Id. The regulations
further classify the “transitory and minor” exception as a defense:
It may be a defense to a charge of discrimination by an individual
claiming coverage under the ‘regarded as' prong of the definition of
disability that the impairment is (in the case of an actual impairment) or
would be (in the case of a perceived impairment) ‘transitory and minor.’
To establish this defense, a covered entity must demonstrate that the
impairment is both ‘transitory’ and ‘minor.’ Whether the impairment at
issue is or would be ‘transitory and minor’ is to be determined objectively.
A covered entity may not defeat ‘regarded as’ coverage of an individual
simply by demonstrating that it subjectively believed the impairment was
transitory and minor; rather, the covered entity must demonstrate that the
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impairment is (in the case of an actual impairment) or would be (in the
case of a perceived impairment) both transitory and minor.
29 C.F.R. § 1630.15(f).
Here, on the one hand, the Plaintiff admits that he did not miss a day of work as a
result of the injury. Further, in June 2010, the Plaintiff was cleared for full duty and,
soon thereafter, he could run a mile at physical therapy. Finally, while the Plaintiff
testified that the injury would debilitate him for the rest of his life and would require
surgery (Plaintiff Dep., at 142.), he points to no objective medical evidence supporting
this testimony.
That said, even if the summary judgment record indicated that the injury was
“minor,” the Defendant must also show, for purposes of this motion, that there is no
genuine issue of material fact that the injury was also “transitory.” The summary
judgment record indicates that the injury hampered the Plaintiff for at least six months
after January 27, 2010, the date of the injury. Therefore, a rational juror could conclude
that the Plaintiff’s impairment was not “minor” and “transitory.”
The Court next considers if there is a genuine issue of material fact as to whether
the Plaintiff was “otherwise qualified” for the position of Corrections Officer I. The
Plaintiff contends that the Defendants have failed to dispute whether a genuine issue of
material fact exists as to this prong. However, a close reading of the Defendants’
memorandum in support of their motion for summary judgment reveals that they do, in
fact, argue that the Plaintiff has failed to satisfy this prong.
The Second Circuit has defined what constitutes “otherwise qualified” and
discussed which party bears the burden of proof:
19
The plaintiff bears the burden of production and persuasion on the issue of
whether he is otherwise qualified for the job in question. A plaintiff
cannot be considered otherwise qualified unless he is able, with or without
assistance, to perform the essential functions of the job in question. It
follows that the plaintiff bears the burden of proving either that she can
meet the requirements of the job without assistance, or that an
accommodation exists that permits her to perform the job’s essential
functions.
Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 137–38 (2d Cir. 1995). “Whether
an individual is qualified is dependent upon his condition at the time of the alleged
adverse employment action.” Bohen v. Potter, No. 04-CV-1039 (WMS), 2009 WL
791356, at *9 (W.D.N.Y. Mar. 23, 2009).
In this case, the Defendants contend that the Plaintiff has failed to establish that
he was “otherwise qualified” for the position of Corrections Officer I because, as
evidenced by his evaluations, his work performance was “minimally acceptable” and he
lacked the necessary interpersonal skills of a Corrections Officer.
However, particularly crucial to the Plaintiff’s ADA discrimination claim is the
deposition testimony of Sergeant Donald Sherrill of the Suffolk County Sherriff’s Office.
Sherrill testified that Lombardo told him:
[T]he evaluation was not intended to terminate [the Plaintiff] or to get [the
Plaintiff] in any trouble or to that he was a bad officer. His issue was for
giving him some low evaluations was for the purpose of to get him more
training because of the amount of time he spent on light duty and it wasn’t
really fair to evaluate him on the same way that all the other officers who
were getting consistent training were getting.
(Sherrill Dep., at 83.)
Although not argued by the Defendants, the Court addresses whether what
Lombardo told Sherrill is inadmissible hearsay. See Fed. R. Civ. P. 56(c)
(requiring evidence in support of or in opposition to summary judgment be
20
admissible); see also Presbyterian Church Of Sudan v. Talisman Energy, Inc., 582
F.3d 244, 264 (2d Cir. 2009)(“[O]nly admissible evidence need be considered by
the trial court in ruling on a motion for summary judgment.”)(internal quotation
marks omitted).
Of relevance here, Rule 801(d)(2)(D) of the Federal Rules of Evidence
provides that a statement is not hearsay if it is offered against an opposing party,
and it “was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed.” There is no dispute that Lombardo, a
Corrections Officer for the Defendant Suffolk County Sherriff’s Office, was an
“agent or employee” of that office and that the substance of his conversation with
Sherrill concerned a matter within the scope of his employment and occurred
while it existed.
Properly viewed, this testimony, coupled with the Plaintiff’s testimony,
lends support to the idea that, the Plaintiff, with certain assistance in the form of
additional training, would be able to perform the functions of Correction Officer I.
Accordingly, the Court finds that there is a genuine issue of material fact as to
whether the Plaintiff was “otherwise qualified” for the position of Corrections
Officer I.
The Court further finds a genuine issue of material fact exists as to whether the
Plaintiff’s termination occurred “because of” his “disability.” Under the ADA,
“[e]stablishing that an individual is ‘regarded as having such an impairment’ does not, by
itself establish liability.” Risco v. McHugh, 868 F. Supp. 2d 75, 109 (S.D.N.Y. 2012).
Rather, “[l]iability is established under title I of the ADA only when an individual proves
21
that [his or her employer] discriminated on the basis of disability within the meaning of
section 102 of the ADA, 42 U.S.C. 12112.” Id. (alteration in original)(citing 29 C.F.R. §
1630.2(l)(3)).
Discriminatory intent may be “inferred from the totality of the circumstances,
including . . . the historical background of the decision . . .; the specific sequence of
events leading up to the challenged decision . . .; [and] contemporary statements by
members of the decisionmaking body.” Kaufman v. Columbia Mem’l Hosp., 2 F. Supp.
3d 265, 278 (N.D.N.Y. Feb.19, 2014)(internal quotation marks and citation
omitted)(alterations in original). However, the plaintiff “cannot rely solely on conclusory
allegations of discrimination without any concrete evidence to support her claims.” Id.
(citation omitted); see also Brown v. Northrop Grumman Corp., No. 12-CV-1488
(JS)(GRB), 2014 WL 4175795, at *11 (E.D.N.Y. Aug. 19, 2014).
The Defendants argue in a cursory fashion that this claim fails as a matter of law
because there is no genuine issue of material fact as to whether the Plaintiff would have
been terminated from his employment “but for” his age and “disability.” The Plaintiff
does little to address the proper causation standard for an ADA claim. Therefore, a brief
history of the relevant case law is in order.
In Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000), the
Second Circuit ruled that “a plaintiff need not demonstrate that disability was the sole
cause of the adverse employment action;” instead, “he must show only that disability
played a motivating role in the decision.” Since that time, however, the Supreme Court
of the United States has held that, while the mixed motives standard applies to claims of
discrimination brought under Title VII, that standard is not available to plaintiffs suing
22
under the ADEA. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78, 129 S. Ct. 2343,
174 L.Ed.2d 119 (2009). The ADEA, the Court explained, is simply a different statute;
while Title VII was expressly amended in 1991 by Congress to impose liability when an
improper consideration was “‘a motivating factor’” for an adverse employment action,
the ADEA imposes liability only when such an action was “because of” a protected
characteristic. Id. at 175–76 (quoting 42 U.S.C. § 2000e–2(m)). The ADEA’s language
thus requires plaintiffs to prove that discrimination was the “but-for cause of the
employer’s adverse action.” Id. at 176 (internal quotation marks omitted).
However, despite an apparent inconsistency with Gross, the Second Circuit has
adhered, albeit in a summary order, to the view that an ADA claim can succeed if the
plaintiff shows that discriminatory animus played a “motivating role” in an “adverse
employment action.” Perry v. NYSARC, Inc., 424 F. App’x 23, 25 (2d Cir. 2011)(citing
Parker). Perry made no reference to Gross.
In University of Tex. Sw. Med. Ctr. v. Nassar, –––U.S. ––––, ––––, ––––, 133 S.
Ct. 2517, 2526, 2533, 186 L. Ed. 2d 503 (2013)), the Supreme Court held that, for a Title
VII retaliation claim, unlike with discrimination claims, a plaintiff must establish that the
allegedly unlawful retaliation “was a ‘but-for’ cause of the adverse action, and not simply
a ‘substantial’ or ‘motivating’ factor in the employer's decision.” See also Zann Kwan v.
Andalex Grp., 737 F.3d 834, 845 (2d Cir. 2013)(citing Nassar). The Court reached this
conclusion because, among other reasons, the anti-retaliation provision of Title VII, like
the ADEA statute at issue in Gross, “makes it unlawful for an employer to take adverse
employment action against an employee “because” of certain criteria. The Court
concluded that “[g]iven the lack of any meaningful textual difference between the text in
23
this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII
retaliation claims require proof that the desire to retaliate was the but-for cause of the
challenged employment action.” Nassar, 133 S. Ct. at 2528, 186 L. Ed. 2d 503.
That the Supreme Court in Gross interpreted the terms “because of” in the ADEA
to require a showing of “but for” causation and in Nassar the same terms in Title VII to
require a showing of “but for” causation lends support to idea that a higher court would
apply “but for” causation to ADA claims. However, “the question of whether the
heightened, ‘but-for’ standard of causation for Title VII retaliation claims . . . applies to
claims asserted under the ADA, is one that has not yet been addressed by the Second
Circuit.” Castro v. City of New York, –––F. Supp. 2d ––––, No. 10–CV–4898
(NG)(VVP), 2014 WL 2582830, at *14 n. 34 (E.D.N.Y. June 5, 2014); Wesley-Dickson
v. Warwick Valley Cent. Sch. Dist., No. 13-4164-CV, 2014 WL 4958166, at *6 n. 3 (2d
Cir. Oct. 6, 2014)(declining to decide this question); Krachenfels v. N. Shore Long Island
Jewish Health Sys., No. 13-CV-243 (JFB)(WDW), 2014 WL 3867560, at *14 n. 12
(E.D.N.Y. July 29, 2014)(“it is an open question in this Circuit whether an ADA plaintiff
must now show that disability discrimination (or the plaintiff's protected activity, in a
retaliation claim) was a but-for cause of the adverse employment action.”).
“Several circuits other than the Second Circuit have already taken the step Gross
seems to presage and applied the but-for standard to ADA claims.” Lyman, 2014 WL
3417394, at *10; see Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir.
2012)(“The ADEA and the ADA bar discrimination ‘because of’ an employee’s age or
disability, meaning that they prohibit discrimination that is a ‘but-for’ cause of the
employer’s adverse decision. The same standard applies to both laws.” (citing Gross, 557
24
U.S. at 176, 129 S. Ct. 2343)); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,
962 (7th Cir. 2010)(applying Gross to the ADA by holding that “in the absence of any
additional text bringing mixed-motive claims within the reach of the [ADA], the statute’s
‘because of’ language demands proof that a forbidden consideration — here, the
employee’s perceived disability — was a ‘but for’ cause of the adverse action”); see also
Palmquist v. Shinseki, 689 F.3d 66, 74 (1st Cir. 2012)(applying Gross to the causation
analysis resulting from the “because” language of the Rehabilitation Act’s retaliation
provision).
“Some district courts in this Circuit, reading the writing on the wall, have
concluded that Parker cannot endure in light of Gross and that the ADA, like the ADEA,
requires a plaintiff to show but-for causation.” Lyman, 2014 WL 3417394, at *10 (citing
Saviano v. Town of Westport, No. 04 Civ. 522 (RNC), 2011 WL 4561184, at *6 (D.
Conn. Sept. 30, 2011)). “Others have preferred to treat Parker as binding absent a
conclusive pronouncement by the Second Circuit or the Supreme Court, and have
continued to apply mixed-motives analysis under the ADA. Lyman, 2014 WL 3417394,
at *10 (citing Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324, 343 n. 40
(S.D.N.Y. 2010)). Both Saviano and Deer Mountain Day Camp predate Nassar.
Following Nassar, a number of district courts have avoided the question
altogether, finding either that the Plaintiff established or failed to establish a genuine
issue of material fact under either standard. Compare Lewis v. Blackman Plumbing
Supply L.L.C., No. 11-CV-7046 KMK, 2014 WL 5009487, at *23 n. 7 (S.D.N.Y. Sept.
29, 2014)(“the Court need not address this issue because it holds that Plaintiff has
satisfied the more-stringent burden [“but-for”] under the McDonnell Douglas[Corp. v.
25
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)] framework.”) with
Krachenfels, 2014 WL 3867560, at *14 n. 12 (E.D.N.Y. July 29, 2014)(“This Court need
not resolve that issue in this case because, as discussed infra, plaintiff has not produced
sufficient evidence from which a rational jury could find that she was constructively
discharged, or that disability discrimination occurred, even under the “motivating factor”
standard.”). One case in this district, Bernadotte v. New York Hosp. Med. Ctr. of
Queens, No. 13-CV-965 (MKB), 2014 WL 808013, at *8 (E.D.N.Y. Feb. 28, 2014),
followed Parker and Perry without referencing Gross or Nassar.
Despite the holdings of Parker and Perry, the Second Circuit has essentially
treated whether the “but for” standard applies to ADA claims as an open question in this
circuit. Wesley-Dickson, 2014 WL 4958166, at *6 n. 3 (“[t]h[e] ‘but-for’ standard might
also apply to her ADA retaliation claim.”).
In this case, if the Court’s resolution of the proper level of causation required to
prove a discrimination and retaliation claim under the ADA were outcome determinative
of any of the Plaintiff’s relevant ADA claims, the Court would decide the issue and
perhaps sua sponte certify that part of the order to the Second Circuit pursuant to 28
U.S.C. § 1292(b). That provision permits an interlocutory appeal when a district judge
“shall be of the opinion that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the litigation . . .” Id.
However, the Court finds that the resolution of the proper level of causation
required to prove a discrimination and retaliation claim under the ADA is not outcome
determinative of any of the Plaintiff’s relevant ADA claims. This is because the Court
26
finds that, for purposes of the present motion for summary judgment, the Plaintiff has
proffered sufficient evidence to establish a genuine issue of material fact even under the
more demanding “but for” standard of causation. In this regard, while the Plaintiff does
not point to any direct evidence of discriminatory intent, such as derogatory statements
made by the Individual Defendants with respect to the Plaintiff’s “disability,” the
Plaintiff has, in the Court’s view, set forth sufficient circumstantial evidence of
discriminatory intent on the basis of the Plaintiff’s “disability.” Indeed, there is evidence
in the record that the Plaintiff informed a supervisor that he needed surgery the day of or
the day before his termination. Trent v. Town of Brookhaven, 966 F. Supp. 2d 196, 206
(E.D.N.Y. 2013)(“Temporal proximity may be sufficient to show a prima facie case”),
reconsideration denied, No. 08-CV-3481 (JS)(AKT), 2014 WL 1757512 (E.D.N.Y. Apr.
30, 2014). Further buttressing an inference of discriminatory intent is Sherrill’s
testimony that to, his knowledge and personal observation, he had never seen the use of
“minimal[ly] acceptable” scores on an evaluation used as a basis of termination for an
employee. (Sherill Dep., at 78.)
Having found that Plaintiff has established a genuine issue of material fact under
either the “motivating factor” or “but for” standard of causation, at this juncture of the
litigation, the resolution of the proper level of causation required for an ADA claim is not
necessary. It also follows that, for purposes of this summary judgment motion, this issue
is not outcome determinative or “controlling” and, therefore, certification of an
interlocutory appeal is not appropriate under 28 U.S.C. § 1292(b).
To be sure, if this case proceeds to trial, an answer to the question of the proper
level of causation required for an ADA claim will be required in the form of jury
27
instructions. However, where, at this point, it is unnecessary to decide the question, the
Court declines to do so, particularly given the lack of briefing on this issue.
In sum, the Court finds that the Plaintiff has, for purposes of this summary
judgment motion, established the causal element of a claim of discrimination under the
ADA.
Pursuant to McDonnell Douglas, once the plaintiff has established the prima facie
case of discrimination or retaliation, the burden then falls upon the defendant to articulate
a legitimate, non-discriminatory reason for the adverse employment action. “The
defendant satisfies this burden if the reason given, ‘taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action.’” Pabon v.
New York City Transit Auth., 703 F. Supp. 2d 188, 195 (E.D.N.Y. 2010). “Typically, it
is not for courts to question the quality or wisdom of the reason, so long as it is not
unlawfully discriminatory.” Id.
Here, the Defendants do not formally proffer a legitimate non-discriminatory
reason for terminating the Plaintiff’s employment and the Court could, on this basis, deny
that part of their motion for summary judgment dismissing the ADA discrimination
claim. However, the Court assumes that the Defendants would rely on the Plaintiff’s
performance issues, as evidenced by his evaluations. Accordingly, the Court finds that
the Defendants have, for purposes of this motion, discharged their burden to come
forward with a legitimate non-discrimination reason for terminating the Plaintiff’s
employment.
In order to survive summary judgment once the defendant has produced a
legitimate, non-discriminatory reason for the adverse employment action, the plaintiff
28
must allege evidence that suggests that it is more likely than not that the reasons offered
are mere pretext designed to cover up the employer’s actual discriminatory intent. Roge
v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001)(citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).
The plaintiff does not have to show that the employer’s reasons are false nor that they
played no role in the decision; rather, he or she must show merely that the proffered
reasons were not the only reasons and that discriminatory animus was at least one of the
motivating factors for the adverse employment action. Cronin v. Aetna Life Ins., Co., 46
F.3d 196, 203 (2d Cir. 1995). Thus, the ultimate burden of persuading the finder of fact
that the employer intentionally discriminated lies with the plaintiff at all times during this
burden-shifting process. Holt v. KMI–Cont’l, Inc., 95 F.3d 123, 129 (2d Cir. 1996).
In this case, the Court finds that the Plaintiff has set forth sufficient evidence that
the evaluations were a pretext for unlawful discrimination. Again, the Court takes note of
Sherrill’s testimony that, in his experience, no Corrections Officer with comparable
evaluation scores had been terminated on that basis. Koontz v. Great Neck Union Free
Sch. Dist., No. 12-CV-2538 (PKC), 2014 WL 2197084, at *4 (E.D.N.Y. May 27,
2014)(in demonstrating pretext, the plaintiff may rely on “the same evidence as
established in plaintiff’s prima facie case”)(italics added).
Accordingly, the Court denies that part of the Defendants’ motion for summary
judgment dismissing the Plaintiff’s ADA discrimination claim against Suffolk County.
E. The Plaintiff’s Retaliation Claim Under the ADA
As noted above, the ADA makes it unlawful for a covered employer to
“discriminate against a qualified individual on the basis of disability. . .” 42 U.S.C. §
29
12112(a). The ADA also makes it unlawful for an employer “to discriminate against any
of his employees . . . because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a).
Retaliation claims brought under the ADA are examined under the same
McDonnell Douglas burden-shifting framework. See e.g., Treglia v. Town of Manlius,
313 F.3d 713, 719 (2d Cir. 2002). To establish a prima facie case of retaliation under the
ADA, the plaintiff must show the following elements: “(1) he engaged in an activity
protected by the ADA; (2) the employer was aware of this activity; (3) the employer took
adverse employment action against him; and (4) a causal connection exists between the
alleged adverse action and the protected activity.” Id.
“A plaintiff may prevail on a claim for retaliation even when the underlying
conduct complained of was not in fact unlawful so long as he can establish that he
possessed a good faith, reasonable believe that the underlying challenged actions of the
employer violated the law.” Treglia, 313 F.3d at 719 (internal quotation marks, alteration,
and citation omitted); Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C.,
716 F.3d 10, 16 (2d Cir. 2013)(“‘[M]ere subjective good faith belief is insufficient; the
belief must be reasonable and characterized by objective good faith.’”)(alterations and
emphasis omitted)(citing Sullivan–Weaver v. New York Power Auth., 114 F.Supp.2d
240, 243 (S.D.N.Y. 2000)).
Relatedly, although the Plaintiff formalized his complaint of discrimination to his
superiors, such is not necessary to prevail on a retaliation claim. Rather, “[t]he complaint
30
can be informal — an employee does not need to lodge a formal complaint of
discrimination.” Bowen-Hooks v. City of New York, No. 10-CV-5947 (MKB), 2014 WL
1330941 (E.D.N.Y. Mar. 31, 2014)(analyzing Title VII); Gorbea v. Verizon N.Y., Inc.,
No. 11–CV–3758 (KAM)(LB), 2014 WL 917198, at *11 (E.D.N.Y. Mar. 10,
2014)(“Requests for disability accommodation and complaints, whether formal or
informal, about working conditions related to one's alleged disability are protected
activities.”).
However, “implicit in the requirement that the employer have been aware of the
protected activity is the requirement that it understood, or could reasonably have
understood, that the plaintiff’s opposition was directed at conduct prohibited by Title
VII.” Jackson v. Syracuse Newspapers, No. 5:10-CV-01362 (NAM), 2013 WL 5423711,
at *20 (N.D.N.Y. Sept. 26, 2013)(citing Galdieri–Ambrosini v. Nat’l Realty & Dev.
Corp., 136 F.3d 276, 292 (2d Cir. 1998)), aff’d, 574 F. App’x 36 (2d Cir. 2014).
Applying this requirement, the Court finds that the Plaintiff has produced
sufficient evidence from which a rational juror could find that the Plaintiff’s complaint
“could reasonably have led [the Suffolk County Sheriff’s Office] to understand that
[animus on the basis of his [disability] was the nature of his objections.” Cf. Jackson v.
Syracuse Newspapers, No. 5:10-CV-01362 (NAM), 2013 WL 5423711, at *20
(N.D.N.Y. Sept. 26, 2013) aff'’d, 574 F. App’x 36 (2d Cir. 2014). In this regard, the
Plaintiff’s March 22, 2010 letter to Draffin makes explicit reference to alleged
discrimination against the Plaintiff on the basis of disability.
The Court pauses to note that, unlike the requirements for a standard disabilitybased discrimination claim, a plaintiff pursuing a retaliation claim need not prove that he
31
or she was actually “disabled” within the meaning of the ADA. Stephan v. W.
Irondequoit Cent. Sch. Dist., 769 F. Supp. 2d 104, 108 (W.D.N.Y. 2011) aff’d sub nom.
Stephan v. W. Irondequoit Cent. Sch. Dist., 450 F. App’x 77 (2d Cir. 2011). In other
words, prevailing on the disability discrimination claim under the ADA is not a
prerequisite to prevailing on a retaliation claim under the ADA.
In addition, “[u]nlike claims of discrimination, which limit what qualifies as an
‘adverse employment action’ to changes in the terms and conditions of employment,
adverse employment actions in the context of a claim of retaliation are much broader.”
Jeffries v. Verizon, No. CV 10-2686 (JFB)(AKT), 2012 WL 4344197, at *18 (E.D.N.Y.
Aug. 31, 2012) report and recommendation adopted, No. 10-CV-2686 (JFB)(AKT), 2012
WL 4344188 (E.D.N.Y. Sept. 21, 2012); see Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006)(“The scope of the
antiretaliation provision extends beyond workplace-related or employment-related
retaliatory acts and harm.”); Solomon v. Southampton Union Free Sch. Dist., No. 08–
CV–4822 (SJF)(ARL), 2011 WL 3877078, at *10 (E.D.N.Y. Sept. 1, 2011)(concluding
that the Supreme Court in White not only expanded the meaning of an adverse
employment action in Title VII retaliation claims, but also in ADA retaliation claims, as
the same standard applies in both).
The applicable test in the retaliation context is that a “plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, which
in this context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” White, 548 U.S. at 68 (internal quotation marks
omitted). However, even under this lenient standard, the Court finds that aside from the
32
Plaintiff’s termination of employment, the Plaintiff did not suffer any “adverse
employment action” as is required to prevail on an ADA claim of retaliation, particularly
in light of the “paramilitary” employment context presented here.
In opposing the Plaintiff’s retaliation claim under the ADA, the Defendants first
argue that this claim fails as a matter of law because the Plaintiff, in writing, withdrew his
complaint of discriminatory conduct. However, the Court notes that the Plaintiff’s
withdrawal was qualified or conditional in nature. In any event, while the withdrawal of
an internal complaint brought to an end any internal dispute resolution mechanisms, it
does not follow, nor do the Defendants cite any authority, that such a withdrawal bars a
retaliation claim under the ADA. To hold otherwise would discourage allegedly
aggrieved employees from withdrawing internal complaints to employers – even if the
situation had thereafter been voluntarily remedied – lest the employee “waive” his or her
rights under federal anti-discrimination law. Employers would then be spending more
time resolving “moot” internal complaints of discrimination and less time resolving
potentially colorable complaints. For these reasons, the Court declines to find that the
Plaintiff’s withdrawal of his complaint, which a reasonable factfinder could construe as
conditional, as a legal bar to the Plaintiff’s claim of retaliation under the ADA.
With regard to causation, “[t]he Supreme Court’s recent decisions in Gross and
Nassar may implicate the causation necessary to prevail on an ADA retaliation claim.”
Tse v. New York Univ., No. 10 CIV. 7207 DAB, 2013 WL 5288848, at *18 (S.D.N.Y.
Sept. 19, 2013). As with traditional ADA discrimination claims, the Second Circuit has
not yet articulated what standard now applies for ADA retaliation claims in light of Gross
and Nassar.
33
However, at this time, the Court need not resolve the question whether the
Plaintiff must prove that his internal complaint was simply a “motivating factor” in his
termination or a “but for” cause of his termination. This is because, in the Court’s view,
the Plaintiff has, for the same reasons supporting his traditional ADA discrimination
claim, set forth sufficient evidence to establish a genuine issue of material fact under
either standard.
Having discharged his burden to establish a prima facie case for his ADA
retaliation claim, the Court finds that, for the same reasons supporting his traditional
ADA discrimination claim, the Plaintiff has set forth sufficient evidence to establish that
the Defendant’s legitimate non-discriminatory reason for terminating the Plaintiff’s
employment – namely, his evaluations – was a pretext for unlawful retaliation for filing
his internal complaint.
Accordingly, the Court denies that part of the Defendants’ motion for summary
judgment dismissing the Plaintiff’s ADA retaliation claim against Suffolk County. In
addition, for the reasons stated in connection with the Plaintiff’s ADA discrimination
claim, the Court is without authority to certify an interlocutory appeal with respect to the
proper level of causation required to prevail on such a claim. The Court will resolve this
issue, if necessary, through jury instructions.
F. The ADA Hostile Work Environment Claim.
The Second Circuit has not yet decided whether a hostile work environment claim
is actionable under the ADA. Giambattista v. Am. Airlines, Inc., No. 14-1363-CV, 2014
WL 6654162, at *2 n. 1 (2d Cir. Nov. 25, 2014); Adams v. Festival Fun Parks, LLC, 560
F. App’x 47, 51 n. 4 (2d Cir. 2014)(noting “[s]everal of our sister circuits have
34
recognized a hostile work environment under the ADA” but that “[w]e have not yet had
occasion to consider this cause of action”); Farina v. Branford Bd. of Educ., 458 Fed.
Appx. 13, 17 (2d Cir. 2011)(“Even assuming, arguendo, that the ADA provides a basis
for a hostile work environment claim [an issue this Court has not yet decided]. . . ”);
Assuming that a hostile work environment claim is cognizable under the ADA, a
plaintiff “must plead facts that would tend to show that the complained of conduct: (1) is
objectively severe or pervasive — that is, . . . creates an environment that a reasonable
person would find hostile or abusive; (2) creates an environment that the plaintiff
subjectively perceives as hostile or abusive; and (3) creates such an environment because
of the plaintiff’s [disability].” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)(quoting
Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001))(internal quotation marks
omitted). Whether a workplace is a hostile work environment under the provisions of the
ADA requires consideration of the totality of the circumstances. These include “the
frequency of the discriminatory conduct; its severity; whether it [was] physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interfere[d] with [the plaintiff's] work performance.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).
Considering these factors, the Court concludes that the Plaintiff fails to establish a
genuine issue of material fact as to a hostile work environment claim under the ADA.
The summary judgment record indicates that the Plaintiff was berated “at times,” but
never in front of his peers; that he was required to use the stairs instead of the elevator
despite his injury; and that he was instructed to write verbatim from a recruit guidebook.
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In the Court’s view, these incidents, along other incidents referenced in the
record, do not rise to the level of “severe or pervasive” to create an objectively hostile or
abusive work environment on the basis of the Plaintiff’s disability or perceived disability.
Stated otherwise, drawing all inferences in the Plaintiff’s favor, no rational juror could
find that “the workplace was so severely permeated with discriminatory intimidation,
ridicule, and insult that the terms and conditions of [Plaintiff’s] employment were thereby
altered.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). This is particularly so
given that the Plaintiff acknowledged that training at the Academy was conducted in a
“paramilitary” environment.
Accordingly, the Court grants that part of the Defendants’ motion for summary
judgment dismissing the Plaintiff’s hostile work environment claim under the ADA.
G. The Section 1983 Claims
Under 42 U.S.C. § 1983, “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.” Thus, unlike with ADA claims, Section 1983 applies by its
terms to individual “persons” responsible for violating a plaintiff’s rights.
Furthermore, “[i]f a defendant has not personally violated a plaintiff’s
constitutional rights, the plaintiff cannot succeed on a § 1983 action against the
defendant.” Raspardo v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014). The case of Monell v.
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Department of Social Services, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978) “defines municipalities as ‘persons’ under § 1983.” Raspardo, 770 F.3d at 115.
However, “[a] municipality can be held liable under Section 1983 only if a
plaintiff can show that a municipal policy or custom caused the deprivation of his or her
constitutional rights.” Marsalis v. Riker’s Island Corr. Facility, No. 14-CV-5080 (KAM),
2014 WL 7076058, at *1 (E.D.N.Y. Dec. 15, 2014). In other words, a municipality “may
not be held liable for the actions of its employees or agents under a theory of respondeat
superior.” Komondy v. Gioco, No. 3:12-CV-250 (CSH), 2014 WL 6453892, at *9 (D.
Conn. Nov. 18, 2014)(italics added). Proof of a single incident of unconstitutional
activity in violation of federal law is not sufficient to impose liability on a municipality
unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy that can be attributed to a municipal policymaker. City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985).
To be sure, where there is no underlying federal statutory or constitutional
violation, there can be no municipal liability under Monell. For this reason, the Court
first addresses any potential liability of the Individual Defendants under Section 1983.
The Court pauses to note that “Section 1983 is not itself a source of substantive
rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807127, L. Ed. 2d 114 (1994)(internal
citations omitted). Thus, a 1983 action can be based only on a constitutional claim or a
claim of a violation of a federal right. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.
Ct. 1353, 137 L.Ed.2d 569 (1997)(“In order to seek redress through section 1983, . . . a
37
plaintiff must assert the violation of a federal right, not merely a violation of a federal
law.”).
In this case, the Plaintiff asserts claims under 42 U.S.C. § 1983 for alleged
violations of the Equal Protection Clause and Due Process Clause of the Fourteenth
Amendment to the United States Constitution. However, nowhere in his papers does the
Plaintiff articulate a substantive due process claim. To the extent the Plaintiff may have
asserted such a claim in his amended complaint, he is deemed to have abandoned it on
this motion. O’Brien v. Yugartis, No. 7:12-CV-1600 (NAM)(TWD), 2014 WL 4715825,
at *7 n. 2 (N.D.N.Y. Sept. 22, 2014)(deeming substantive due process claim abandoned
in opposition to motion for summary judgment).
Further, inasmuch as the Plaintiff asserts an equal protection “class-of-one” claim,
that claim fails as a matter of law in light of the Supreme Court’s decision in Enquist v.
Or. Dep’t of Agric., –––U.S. ––––, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). In
Enquist, the Supreme Court held that “a ‘class-of-one’ theory of equal protection has no
place in the public employment context.” 128 S. Ct. at 2148–49.
To prove a traditional claim under the Equal Protection clause, “a plaintiff must
demonstrate that [s]he was treated differently than others similarly situated as a result of
intentional or purposeful discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.
2005). “An employee is similarly situated to co-employees if they were (1) subject to the
same performance evaluation and discipline standards and (2) engaged in comparable
conduct, that is, they were similarly situated in all material respects.” Men of Color
Helping All Soc., Inc. v. City of Buffalo, 529 F. App’x 20, 26 (2d Cir. 2013)(citations
and quotation marks omitted).
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“‘Once action under color of state law is established, the analysis for such claims
is similar to that used for employment discrimination claims brought under Title VII, the
difference being that a § 1983 claim, unlike a Title VII claim, can be brought against
individuals.’” Firestone v. Berrios, No. 12-CV-0356 (ADS)(ARL), 2013 WL 297780, at
*10 (E.D.N.Y. Jan. 22, 2013)(quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d
Cir.2006).
Here, it is undisputed that the Individual Defendants were at all relevant times
acting under color of state law. In addition, the Court finds that the Plaintiff has
established a genuine issue of material fact that he was impermissibly treated in a
different manner than others because of his disability or perceived disability. Again,
Sherill testified that the evaluations of the type the Plaintiff received had never, in his
experience, been used to terminate an officer’s employment.
However, “it is not enough for the Plaintiff to allege a violation of the
Constitution or federal law under Section 1983. The Second Circuit has long recognized
that a plaintiff asserting claims under § 1983 must allege the personal involvement of
each individual defendant acting under color of state law.” 545 Halsey Lane Properties,
LLC v. Town of Southampton, No. 14–CV–800 (ADS)(GRB), 2014 WL 4100952, at *18
(E.D.N.Y. Aug. 19, 2014); Back v. Hastings On Hudson Union Free School Dist., 365
F.3d 107, 122 (2d Cir. 2004)(“Additionally, ‘[i]n this Circuit personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages
under § 1983.’”)(quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)).
Here, the summary judgment record indicates that Tschantre made a comment
about the Plaintiff’s age; that Tschantre and Hemmendinger required the Plaintiff, and the
39
other recruits, to engage in the exercise which resulted in the Plaintiff’s injury; that, on
one occasion, Weick chastised the Plaintiff in private for not completing a document
correctly; and that, on one occasion, Korte berated the Plaintiff, and that this encounter
was overhead by some of the other recruits.
However, the Plaintiff fails to proffer evidence connecting any of the Individual
Defendants to the discriminatory use of the evaluations as a basis for the termination of
his employment. Stated otherwise, even after discovery, there is no indication that any of
the Individual Defendants possessed firing authority, or that they even recommended or
encouraged the termination of the Plaintiff’s employment. Notably, the Plaintiff did not
include as a defendant either Lombardo or Selg, whose evaluations apparently served as a
basis for the termination of his employment.
To be sure, “personal involvement does not hinge on who has the ultimate
authority for constitutionally offensive decisions. Rather, the proper focus is the
defendant’s direct participation in, and connection to, the constitutional deprivation.”
McClary v. Coughlin, 87 F. Supp. 2d 205, 215 (W.D.N.Y. 2000), aff’d sub nom.
McClary v. Kelly, 237 F.3d 185 (2d Cir. 2001). Where a deprivation of rights occurs as
the “natural and foreseeable” consequence of a state actor's conduct, he may be liable
under section 1983. Morrison v. LeFevre, 592 F. Supp. 1052, 1077 (S.D.N.Y. 1984).
“The requisite causal connection is satisfied if the defendant set in motion a series of
events that the defendant knew or should have known would cause others to deprive the
plaintiff of her constitutional rights.” Conner v. Reinhard, 847 F.2d 384, 397 (7th Cir.
1988), cert. denied, 488 U.S. 856, 109 S. Ct. 147, 102 L. Ed. 2d 118 (1988).
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In this case, the Court recognizes that Tschantre and Hemmendinger required the
Plaintiff, along with other recruits, to perform the exercise which resulted in his injury,
which led him to miss certain physical training, which contributed to his “minimally
acceptable” evaluation scores and his termination on the basis of those scores. However,
the Court concludes that the Plaintiff has failed to establish a genuine issue of material
fact that any of the Individual Defendants set in motion the events that led to his ultimate
determination. In the Court’s view, no rational juror could find that the Plaintiff’s
termination was a “natural and foreseeable” result of the requirement to perform a certain
exercise. Therefore, the Court grants that part of the Defendants’ motion for summary
judgment dismissing the Plaintiff’s Section 1983 claims against the Individual
Defendants. The Court need not address any entitlement by the Individual Defendants’ to
qualified immunity.
Having dismissed the Plaintiff’s Section 1983 claims against the Individual
Defendants, his derivative claims against Suffolk County must be dismissed as well.
Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006)(an “underlying constitutional
violation” by a municipal official is required for Monell liability). Accordingly, the
Court grants that part of the Defendants’ motion for summary judgment dismissing the
Plaintiff’s Section 1983 claims against Suffolk County.
H. The Plaintiff’s State Law Claims
A review of the amended complaint reveals that the Plaintiff’s state law claims
sound in disability and age discrimination in violation of the NYSHRL. The Defendants
argue that, in the event this Court dismisses the Plaintiff’s federal causes of action, it
should decline to exercise supplemental jurisdiction over these pendent state law claims.
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However, as noted above, the Plaintiffs’ claim of discrimination and retaliation under the
ADA against Suffolk County survive the Defendants’ motion for summary judgment.
In their reply papers, the Defendants muster an argument on the merits of the
Plaintiff’s state law claims. However, “[t]he Second Circuit has clearly stated that
arguments raised for the first time in reply papers or thereafter are properly ignored.”
Colon v. City of N. Y., No. 11–CV–0173, 2014 WL 1338730, at *9 (Apr. 2, 2014)(citing
Watson v.. Geithner, 355 F. App’x 482, 483 (2d Cir.2009)); see also Hill v. Donoghue,
518 F. App’x 50, 52 n. 2 (2d Cir. 2013)(declining to address issue raised for first time in
the reply brief); ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 485 F.3d
85, 97 n .12 (2d Cir. 2007)(“We decline to consider an argument raised for the first time
in a reply brief.”); US Engine Prod., Inc. v. ISO Grp., Inc., No. 12–CV–4471 (JS)(GRB),
2013 WL 4500785, at *8 (E.D.N.Y. Aug. 20, 2013)(“[A] party cannot raise arguments
for the first time in a reply brief.”). For this reason, the Court declines to entertain the
Defendants’ arguments challenging the merits of the Plaintiff’s state law claims.
III.
CONCLUSIONS
In sum, the Court denies the Defendants’ motion for summary judgment as to (1)
the Plaintiff’s claim of discrimination in violation of the ADA against Suffolk County
and (2) the Plaintiff’s claim of retaliation in violation of the ADA against Suffolk
County, and (3) the Plaintiff’s state law claims sounding in in disability and age
discrimination in violation of the NYSHRL against all the Defendants, except the Suffolk
County Sherriff’s Department. The motion is otherwise granted. The Clerk of the Court
is respectfully directed to terminate the Suffolk County Sheriff’s Department as a party to
this action.
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SO ORDERED.
Dated: Central Islip, New York
December 29, 2014
Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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