Troeger v. Ellenville Central School District

Filing 25

MEMORANDUM-DECISION and ORDER - That the District's 12 Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART as follows: DENIED as to Troeger's failure to accommodate claim for the period of November 7, 2007 until the end of the 2007-08 school year. GRANTED as to Troeger's disparate treatment claim and his failure to accommodate claim relating to the period prior to November 7, 2007, and those claims are DISMISSED. That this case is deemed trial ready and the court, in due course, shall issue a trial scheduling order. Signed by Chief Judge Gary L. Sharpe on 5/8/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
MICHAEL TROEGER,
Plaintiff,

1:10-cv-718
(GLS/DRH)

v.
ELLENVILLE CENTRAL SCHOOL
DISTRICT,
Defendant.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Sussman, Watkins Law Firm
55 Main Street, Suite 6
P.O. Box 1005
Goshen, NY 10924
FOR THE DEFENDANT:
Drake, Loeb Law Firm
555 Hudson Valley Avenue
Suite 100
New Windsor, NY 12553

MICHAEL H. SUSSMAN, ESQ.

ADAM L. RODD, ESQ.
RALPH L. PUGLIELLE, JR., ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Michael Troeger commenced this action under the Americans

with Disabilities Act (ADA),1 alleging that, as part of a concerted
discriminatory campaign, Ellenville Central School District (“the District”)
impermissibly docked his sick leave and failed, on multiple occasions, to
reasonably accommodate his disability. (See Compl., Dkt. No. 1.)
Pending is the District’s motion for summary judgment. (Dkt. No. 12.) For
the reasons that follow, the District’s motion is granted in part and denied in
part.
II. Background2
On November 19, 2004, Troeger, a school counselor in the employ of
the District since 1995, injured his lower back while lifting a conference
table. (Def.’s Statement of Material Facts (SMF) ¶¶ 1-2, 6-7, Dkt. No. 12,
Attach. 15.) As a result of his injuries, Troeger was absent from work until
March 2005. (Id. ¶ 8.) Seven months later, on October 19, 2005, Troeger
was pushed into a filing cabinet by a 4th grade student, resulting, in the
opinion of the school nurse, in a lower back contusion.3 (Id. ¶¶ 23-25.) A
previously-scheduled MRI performed the following day showed “[l]eft

1

42 U.S.C. § 12101 et seq.

2

The facts are undisputed unless otherwise noted.

3

The question of whether this incident caused Troeger further injury is a central point of
contention between the parties.

2

posterolateral annular tear with focal protrusion into the left L4 neural
foramen.” (Id. ¶ 27; Dkt. No. 16, Attach. 20 at 3.) Troeger left work a
month later, on November 29, 2005, and remained absent until attempting
to return to the District for the 2006-07 school year. (Id. ¶ 28; Pl.’s SMF ¶
35, Dkt. No. 15.)
In notes dated August 24, 2006, Dr. Janet Tamai indicated that
Troeger could return to work two days per week with restrictions, including
four-hour work days, activity limitations and freedom from exposure to
“excessive stressors.” (Def.’s SMF ¶ 37; Pl.’s SMF ¶ 38; Dkt. No. 16,
Attach. 9.) Superintendent Lisa Wiles responded to Dr. Tamai, requesting
clarification on several aspects of her recommendations, including “what
constitutes an ‘excessive stressor.’” (Dkt. No. 12, Attach. 11 at 18.) On
September 5, 2006, Dr. Tamai clarified Troeger’s physical limitations, and
opined that he “should not be involved in crisis intervention,” and that his
“interaction with all staff should be at a low level of stress.” (Id. at 20.)
Following an additional inquiry by Wiles, (see id. at 22), Dr. Tamai clarified
that Troeger “should not be involved in any violent crisis intervention that is
of a physical nature which would put him in the position of potentially reinjuring his back,” but that “[h]e may interact with students in any other
3

manner that is required by his job description,” and that “his interaction with
staff should be at a low level of stress, as much as one is able to control.”
(Id. at 24.) The District subsequently referred Troeger to Dr. John Lucas
for a psychiatric evaluation pursuant to N.Y. Educ. Law § 913. (Id. at 26;
Dkt. No. 12, Attach. 12 at 2.) In a November 30, 2006 report, Dr. Lucas
determined that Troeger could not “perform the duties of a school guidance
counselor at [that] time,” and Troeger was not permitted to return to work
during the 2006-07 school year. (Dkt. No. 12, Attach. 12 at 8-9; Def.’s SMF
¶ 48.)
Under the District’s Collective Bargaining Agreement (CBA),
absences resulting from on-the-job assaults are not charged against an
employee’s sick leave entitlement. (See Dkt. No. 12, Attach. 10 at 16.) On
August 20, 2007, a Workers’ Compensation Board (WCB) Panel found that
Troeger “failed to meet his burden of establishing a causal relationship
between his low back injury” and the October 19, 2005 work incident. (Dkt.
No. 12, Attach. 12 at 13-15; Def.’s SMF ¶ 51.) The District subsequently
charged the absences accrued by Troeger following the October 19, 2005
incident against his sick leave allotment. (Def.’s SMF ¶ 52.)
Before the 2007-08 school year began, the District asked Troeger to
4

submit medical evidence of his physical and mental fitness to return to
work. (Def.’s SMF ¶¶ 60, 63.) In a letter dated September 9, 2007, Dr.
Megan McMullan4 indicated that Troeger could return to work “in a capacity
ad lib from part to full time,” with accommodations such as an ergonomic
chair and desk, and that “there should be efforts made to prevent him from
having to physically restrain students.” (Dkt. No. 12, Attach. 12 at 19.) The
District sought clarification, (see id. at 23-24), and Dr. McMullan opined that
Troeger could begin working twenty hours per week “and increase to full
time rapidly” if his symptoms avoided aggravation. (Id. at 27.) Dr.
McMullan further indicated that the type of ergonomic chair and desk
required was “up to [the District’s] discretion.” (Id.) Following the
November 2, 2007 receipt of a report from Psychologist Richard Ovens
indicating that he could return to work (see Def.’s SMF ¶ 67), Troeger was
instructed by the District to report for part-time employment on November
7, 2007. (Id. ¶ 68.) From his return on November 7, 2007, until the
present, Troeger has worked in an In-School Suspension (ISS) room. (Id.
¶ 71.)

4

Dr. McMullan responded to the District’s request because Dr. Tamai was on maternity
leave. (Dkt. No. 12, Attach. 12 at 19.)

5

On August 25, 2008, Troeger filed a charge against the District with
the Equal Employment Opportunity Commission (EEOC). (See Dkt. No. 1,
Attach. 1 at 3-6.) On March 17, 2010, the EEOC issued Troeger a right-tosue letter after reaching an inconclusive determination as to his charge.
(Dkt. No. 1, Attach. 2.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 56 is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its decision in Wagner v. Swarts, No. 1:09-cv652, 2011 WL 5599571, at *4 (N.D.N.Y. Nov. 17, 2011).
IV. Discussion
A.

ADA Framework
The ADA prohibits discrimination by a covered entity “against a

qualified individual with a disability because of the disability of such
individual in regard to . . . terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a) (2008).5 In order to establish a prima facie disparate

5

Effective January 1, 2009, Congress amended the ADA “in order to expand its
coverage.” See Stephan v. West Irondequoit Cent. Sch. Dist., 450 F. App’x 77, 79 n.1 (2d Cir.
2011). Because the conduct in question occurred prior to 2009, however, Troeger’s claims are
analyzed under the pre-2009 version of the ADA, and all ADA citations are to that statute
unless otherwise noted. Id.

6

treatment claim under the ADA, a plaintiff must show that: “(1) the
employer is subject to the ADA; (2) [he] is disabled within the meaning of
the ADA; (3) he could perform the essential functions of his job with or
without reasonable accommodation; and (4) he suffered an adverse
employment action because of his disability.” Nader v. ABC Television,
Inc., 150 F. App’x 54, 55 (2d Cir. 2005). Disparate treatment claims are
analyzed under the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Id.
An employer may also be liable under the ADA where it fails to make
“reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability.” 42 U.S.C. §
12112(b)(5)(A); see McBride v. BIC Consumer Prod. Mfg. Co., Inc., 583
F.3d 92, 96 (2d Cir. 2009). To make a prima facie showing of an
employer’s failure to accommodate, a plaintiff must establish that “(1) [he]
is a person with a disability under the meaning of the ADA; (2) an employer
covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at
issue; and (4) the employer has refused to make such accommodations.”
Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.
7

2004).
B.

Timeliness
The District argues first that, under the 300-day EEOC statute of

limitations, all claims asserted by Troeger which arose prior to November 7,
2007 are barred as untimely. (Dkt. No. 12, Attach. 7 at 8-11.) Troeger
contends that his pre-November 2007 claims are timely under the
continuing violation doctrine. (Dkt. No. 14 at 10-12.) The court agrees with
the District.
As a prerequisite to commencing a discrimination claim under the
ADA, a claimant must file a charge with the EEOC within 300 days of the
allegedly unlawful act. Valtchev v. City of N.Y., 400 F. App’x 586, 588 (2d
Cir. 2010) (citing 42 U.S.C. § 12117(a)). Where the act in question is
discrete, or easy to identify—such as “failure to promote, denial of transfer,
or refusal to hire,” see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114 (2002)—neglecting to file a timely EEOC charge is fatal.
Valtchev, 400 F. App’x at 588. Under the continuing violation doctrine,
however, acts falling outside of the 300-day window may not be time
barred where they are part of an ongoing “policy and practice of prohibited
discrimination,” and at least one discriminatory act in furtherance of that
8

scheme is alleged to have occurred within the limitations period. Id. at 58889. The continuing violation doctrine is not implicated, though, by “multiple
incidents of discrimination, even similar ones, that are not the result of a
discriminatory policy or mechanism.” Id. at 588-89 (internal quotation
marks and citation omitted).
Troeger’s EEOC charge was filed on September 2, 2008, extending
the reach of the 300-day statute of limitations to November 7, 2007. (See
Def.’s SMF ¶ 96). The alleged acts of discrimination at issue are: (1) the
District counting Troeger’s absences following the October 19, 2005
incident against his sick leave allotment; (2) its failure to accommodate
Troeger’s disability in a manner that would have allowed him to work during
the 2006-07 school year; and (3) following his return in November 2007, its
failure to accommodate his disability during the 2007-08 school year by
depriving him of an ergonomic chair and requiring him to work in the ISS
room. (See Compl. ¶¶ 8-19.) The District’s alleged failure to
accommodate Troeger’s disability during the 2007-08 school year is the
only act which falls within the limitations period.6
6

While the District argues that Troeger was notified of its decision to dock his sick-time
allotment by way of an August 31, 2007 letter from Wiles, (see Def.’s SMF ¶ 54), Troeger
counters that he did not receive notice until October 11, 2007, (see Pl.’s SMF ¶ 54). As
support for this contention, Troeger inexplicably cites to Wiles’ August 31, 2007 letter. (Id.) In

9

In Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir.
2003), the Second Circuit held that “an employer’s rejection of an
employee’s proposed accommodation for religious practices does not give
rise to a continuing violation,” but rather constitutes a “‘discrete act.’” This
reasoning has also been applied to reasonable accommodation claims
brought under the ADA. See, e.g., Lipka v. Potter, No. 03CV381A, 2006
WL 839421, at *4 (W.D.N.Y. Mar. 28, 2006); Stuevecke v. N.Y. Hosp. Med.
Ctr. of Queens, No. 01-CV-326, 2003 WL 22019073, at *4 (E.D.N.Y. Aug.
26, 2003); see also Davis v. N.Y. State Office of Mental Health, No. 05-CV5599, 2009 WL 5178440, at *6 (E.D.N.Y. Dec. 31, 2009) (collecting cases).
Accordingly, the District’s alleged failures to accommodate constitute
discrete acts, not a continuing violation. Because the alleged
discrimination by the District was comprised of discrete acts with no
evidence of a concerted policy or mechanism, summary judgment is
granted as to Troeger’s sick leave disparate treatment claim, as well as his
failure to accommodate claim to the extent that it relates to events which
occurred prior to November 7, 2007.

any event, because both dates precede November 7, 2007, Troeger was undoubtedly made
aware of the District’s position more than 300 days prior to the filing of his EEOC complaint.

10

C.

Disability Determination
The District avers next that it is entitled to summary judgment on all

claims because Troeger is not “disabled” as that term is defined by the
ADA. (Dkt. No. 12, Attach. 7 at 15-17.) Troeger counters, and the court
agrees, that a reasonable jury could find that his back ailments constitute a
qualifying disability. (Dkt. No. 14 at 12-15.)
As noted above, a plaintiff must show his disability under the ADA in
order to establish both a disparate treatment and failure to accommodate
claim. See Nader, 150 F. App’x at 55; Rodal, 369 F.3d at 118. Under the
ADA, “disability” means “(A) a physical or mental impairment that
substantially limits one or more major life activities . . . ; (B) a record of
such an impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(1). Allegations of disability advanced under the first
method require of the plaintiff: (1) a showing that he suffers from a physical
or mental impairment; (2) identification of the supposedly-impaired major
life activity; and (3) demonstration of substantial limitation of that activity.
Duttweiller v. Eagle Janitorial, Inc., No. 5:05-CV-0886, 2009 WL 1606351,
at *18 (N.D.N.Y. June 4, 2009).
For purposes of the ADA, a physical impairment is “‘[a]ny
11

physiological disorder, or condition . . . affecting one or more of the
following body systems: neurological [or] musculoskeletal . . . .’” Francis v.
City of Meriden, 129 F.3d 281, 283 (2d Cir. 1997) (quoting 29 C.F.R. §
1630.2(h)(1)). “Major life activities” include “functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working,” as well as “sitting, standing, lifting, [and]
reaching.” Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998)
(internal quotation marks and citations omitted). Substantial limitation
occurs where a plaintiff is “(i) [u]nable to perform a major life activity that
the average person in the general population can perform; or (ii)
significantly restricted as to the condition, manner or duration under which
[he] can perform a particular major life activity as compared to . . . the
average person.” Id. (quoting 29 C.F.R. § 1630.2(j)(1)).
The crux of the District’s disability argument is that Troeger’s
herniated disks were temporary, and therefore did not substantially limit
any major life activities. (See Dkt. No. 12, Attach. 7 at 15-17.) While the
Second Circuit has declined to find temporary injuries “per se unprotected
under the ADA,” see Adams v. Citizens Advice Bureau, 187 F.3d 315, 317
(2d Cir. 1999), a proper disability analysis considers the duration of
12

impairment, see Capobianco v. City of N.Y., 422 F.3d 47, 57 (2d Cir. 2005).
In support of its argument, the District points to Troeger’s return to full-time
work, an October 3, 2007 note by Dr. McMullan indicating “no significant
restrictions on driving, walking, standing, sitting, or climbing stairs,”7 and a
January 2012 orthopedic report describing Troeger’s musculoskeletal
condition as “both transitory and minor.” (Dkt. No. 12, Attach. 7 at 16-17;
Attach.12 at 27; Attach. 13 at 51.)
While Troeger cites only generally to the medical evidence of record
in support of the contention that his back injury substantially limited his
ability to, inter alia, lift, sit, stand and work,8 that evidence is nevertheless
sufficient to defeat summary judgment on the question of disability. (Dkt.
No. 14 at 12-14.) The District admits that Troeger first injured his back in

7

To the extent that the District’s reply papers can be construed as objecting to
Troeger’s reliance on the notes of his doctors in opposing summary judgment, (see Dkt. No. 22
at 8-9), that objection is waived because the District similarly offered, and relied on, those
letters. See Capobianco, 422 F.3d at 55 (holding that while “unsworn letters from physicians
generally are inadmissible hearsay,” where a defendant submits and relies upon such letters, it
waives objection to their admissibility).
8

Troeger first articulated lifting and working as relevant life activities in his response
papers. (See Dkt. No. 14 at 12, 14.) The District contends that the omission of these activities
from the Complaint precludes their consideration. (See Dkt. No. 22 at 7-8.) While the threat of
prejudice in the discovery process in some cases justifies refusal to consider particular claims
first raised in opposition to summary judgment, see Greicus v. Liz Claiborne, Inc., No. 00 CIV
9518, 2002 WL 244598, at *3 (S.D.N.Y. Feb. 20, 2002), no such threat exists here as the
District itself offered, and relied on, the physician letters upon which Troeger largely bases his
impairment arguments.

13

2004, (see Def.’s SMF ¶ 6), and the notes of Drs. Tamai and McMullan
indicate that injury persisted, in some degree of severity, through at least
the beginning of the 2007-08 school year, (see Id. ¶¶ 37, 39, 41, 61, 65).
In addition to the findings cited to by the District, Dr. McMullan’s October 3,
2007 note also stated that Troeger should work only twenty hours per
week, have an “ergonomic chair and desk setting,” and that his “[l]ifting
restriction [was] already documented,” referencing her previous report from
September 9, 2007, in which she noted that Troeger “should be limited to
lifting less than 20 pounds.” (Dkt. No. 12, Attach. 12 at 19, 27.) Upon his
return to work in November 2007, the District heeded McMullan’s
suggestion of a reduced schedule, limiting Troeger to working four hours
per day. (Dkt. No. 16, Attach. 28.)
Because Troeger has established the existence of a back injury
beginning as early as 2004, and identified major life activities which he
claims were substantially limited, the ultimate disability determination under
the first method hinges on a finding of whether a substantial limitation
existed. See Duttweiller, 2009 WL 1606351, at *18. Construing all
evidence in the light most favorable to him, a reasonable jury could find
that, during the relevant time period, Troeger suffered substantial limitation
14

of a major life activity, thereby precluding summary judgment as to this
point.
D.

Sick Leave Claims
Next, the District seeks summary judgment on Troeger’s sick leave

claims9 on the grounds that the decision to dock his sick time allotment was
not made “because of” his disability, or, alternatively, that Troeger was not
a “qualified individual” under the ADA. (Dkt. No. 12, Attach. 7 at 11-14.)
Because it is dispositive, the court need only address the District’s first
argument.
As noted above, establishing a prima facie disparate treatment claim
under the ADA requires a showing that the plaintiff “suffered an adverse
employment action because of his disability.” Nader, 150 F. App’x at 55.
Although “[a] trial court must be cautious about granting summary judgment
to an employer when, as here, its intent is at issue,” Gallo v. Prudential
Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994),

9

While the District’s initial decision to charge Troeger’s absences against his sick-time
allotment is dismissed as untimely, Troeger alleges that he became aware in 2009 that, as a
result of its 2007 decision, the District was prospectively docking his sick leave in an effort to
recoup the salary he received in 2006-07. (Dkt. No. 14 at 4.) To the extent that Troeger
portrays these subsequent actions as discrete acts of discrimination, they are addressed on
the merits. Because the alleged conduct occurred after December 31, 2008, the ADA
Amendments Act applies. See Stephan, 450 F. App’x at 79 n.1. This distinction, however, is
irrelevant to the instant analysis.

15

summary judgment cannot be defeated by the mere assertion of
“conclusory allegations of discrimination.” Greene v. New York, No. 95 Civ.
6580, 1998 WL 264838, at *6 (S.D.N.Y. May 22, 1998) (citing Smith v. Am.
Exp. Co., 853 F.2d 151, 154 (2d Cir. 1988)).
Following an August 20, 2007 determination by the WCB that
Troeger failed to establish a causal link between his back injury and the
October 19, 2005 incident, (see Def.’s SMF ¶ 51), the District charged
Troeger’s absences, which spanned from November 2005 through the end
of the 2006-07 school year, against his sick-time allotment. (Id. ¶ 52.) The
District’s CBA provides that where “an employee is absent from school as a
result of a personal injury caused by an assault . . . , the employee shall be
paid his or her salary for the duration of such absence, and no part of such
absence shall be charged to the employee’s sick leave entitlement.” (Dkt.
No. 16, Attach. 3.) Superintendent Wiles testified that “[w]here the [WCB]
finds that absences are not causally related to a claimed on-the-job injury,
the District’s practice has always been to charge any such absences
against an employee’s sick time.” (Dkt. No. 12, Attach. 2 ¶ 14.)
Troeger contends that his sick leave was docked because of his
disability and that the District’s reliance on the WCB determination violates
16

the CBA and is therefore mere pretext. (Dkt. No. 14 at 17-19.) No
evidence has been adduced by Troeger, however, to refute Wiles’
testimony that the district has always relied on WCB findings in making
disability determinations following alleged on-the-job injuries. (See id.)
Furthermore, even if Troeger is correct that conditioning the payment of
benefits on a WCB determination violates the CBA, such a violation does
not support the allegation that the District’s decision was made because of
Troeger’s disability. See Cioce v. Cnty. of Westchester, 128 F. App’x 181,
184 (2d Cir. 2005) (holding that where a plaintiff was denied benefits for
failing to comply with an examination requirement of a CBA, his
disagreement with that clause “[did] not support his claim of discrimination
based on his disability”).
Although considerable caution is required at this stage of a
discrimination case, Troeger has offered only conclusory allegations that
the District docked his sick leave because of his disability. Accordingly, to
the extent that Troeger’s sick leave claims may be construed as having
accrued after November 7, 2007, they are dismissed.
E.

Failure to Accommodate During 2007-08 School Year
Finally, the District argues that, because he did not interact in good
17

faith, Troeger is barred from recovering on his claim that the District failed
to accommodate his disability during the 2007-08 school year. (Dkt. No.
12, Attach. 7 at 18-21.) In response, Troeger insists that he consistently
displayed good faith in requesting accommodations from the District. (Dkt.
No. 14 at 21-22.) While the court acknowledges the eventual cessation of
good faith on the part of Troeger, he adduces sufficient facts to defeat
summary judgment as to the time period relevant here.
Where the establishment of a reasonable accommodation is at issue,
the ADA envisions an “‘informal, interactive process’” between the
employer and employee. Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 F.
App’x 943, 945-46 (2d Cir. 2008) (quoting 29 C.F.R. § 1630.2(o)(3)). “An
employee who is responsible for the breakdown of that interactive process
may not recover for a failure to accommodate.” Id. at 946.
At the beginning of the 2007–08 school year, Troeger was asked to
provide a medical note indicating that he was fit to return to work as a
guidance counselor.10 (Def.’s SMF ¶ 60.) In response to this request, Dr.
McMullan indicated that, upon returning to work, Troeger should receive an

10

While communications between Troeger and the District regarding accommodations
began in 2005, (see Def.’s SMF ¶ 31), this request is the first interaction relevant to the period
at issue.

18

“ergonomic chair and desk setting,” and that “there should be efforts made
to prevent him from having to physically restrain students.” (Dkt. No. 16,
Attach. 21 at 2.) Following a letter of clarification by Dr. McMullan, (see
Dkt. No. 16, attach. 23 at 2), Wiles wrote to Troeger on November 2, 2007,
instructing him to resume work the following week and imploring him to
contact Principal Eikszta immediately if he required “particular equipment
or furniture to accommodate” his return. (Dkt. No. 12, Attach. 12 at 43.)
The following day, Troeger wrote to Eikszta, requesting confirmation that
the ergonomic chair which he requested in April 2006, (see Dkt. No. 16,
Attach. 25 at 2), was ordered and received. (Dkt. No. 12, Attach. 13 at 8.)
While Troeger made no further formal requests during the 2007-08 school
year regarding an ergonomic chair, (see Dkt. No. 12, Attach. 14 at 29-30),
he claims to have expressed “informal complaints to the administration.”
(Id. at 29.) Additionally, by way of a March 22, 2008 letter, Troeger notified
Sherry Sharpe, the District’s Director of Special Education, that his
assignment to the ISS room created an “imminent risk of re-injury.” (Dkt.
No. 16, Attach. 8 at 2.)
Between the end of the 2007-08 school year and 2011, Lisa Dwyer,
the District’s Compliance Officer, repeatedly contacted Troeger with
19

inquiries as to whether he required any additional accommodations. (See
Def.’s SMF ¶¶ 74-75, 81, 84, 87, 93.) Troeger declined each of these
offers.11 (See id. ¶¶ 75, 82, 84, 88, 94.) As explanation for his failure to
work with Dwyer, Troeger claims that he believed to do so would have
violated Wiles’ November 2, 2007 letter instructing him to contact Eikszta
regarding necessary accommodations. (See id. ¶ 76.)
The District relies heavily on Troeger’s failure to communicate with
Dwyer as evidence of his bad faith. (See Dkt. No. 12, Attach. 7 at 20.)
While the court agrees, Troeger’s Complaint limits the District’s alleged
failure to accommodate to the end of the 2007-08 school year. (See
Compl. ¶¶ 8, 13, 18.) Because Dwyer’s communications did not
commence until the end of that school year, (see Def.’s SMF ¶ 75),
Troeger’s lack of good faith from that point forward is of no moment.
As for the entirety of the 2007-08 school year, Troeger has adduced
facts which could lead a reasonable jury to find that he engaged in good
faith efforts with the District during that period. Accordingly, the District’s
motion for summary judgment is denied as to Troeger’s failure to

11

On October 4, 2010, Troeger wrote to Eikszta, again requesting an ergonomic chair
and providing specific model information. (Dkt. No. 16, Attach. 29 at 2.) Two days later, on
October 6, the chair requested by Troeger was delivered. (Id., Attach. 25 at 2.)

20

accommodate claim as it relates to the period between November 7, 2007
and the end of the 2007-08 school year.
F.

ISS Assignment
In its reply brief, the District argues, for the first time, that assigning

Troeger to the ISS room did not constitute a failure to accommodate.12
(See Dkt. No. 22 at 12-15.) Because “it is inappropriate to raise new
arguments in a reply brief,” the court need not, and does not, entertain the
District’s contention. Shanks v. Vill. of Catskill Bd. of Trustees, 653 F.
Supp. 2d 158, 165 n.6 (N.D.N.Y. 2009).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the District’s motion for summary judgment (Dkt. No.
12) is DENIED IN PART and GRANTED IN PART as follows:
DENIED as to Troeger’s failure to accommodate claim for the
period of November 7, 2007 until the end of the 2007-08 school year; and
GRANTED as to Troeger’s disparate treatment claim and his
failure to accommodate claim relating to the period prior to November 7,

12

In its initial brief, the District sought summary judgment on the ISS assignment issue
solely on the basis of Troeger’s failure to interact in good faith. (See Dkt. No. 12, Attach. 7 at
18-21.)

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2007, and those claims are DISMISSED; and it is further
ORDERED that this case is deemed trial ready and the court, in due
course, shall issue a trial scheduling order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
May 8, 2012
Albany, New York

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