Troeger v. Ellenville Central School District

Filing 35

MEMORANDUM-DECISION and ORDER - ORDERED that the District's motion for reconsideration (Dkt. No. 28) is GRANTED; and it is further ORDERED that Troeger's remaining failure-to-accommodate claim for the period between November 7, 2007 and the end of the 2007-08 school year is DISMISSED; and it is further ORDERED that Troeger's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 8/23/2012. (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 against the Ellenville

Central School District (“the District”), alleging multiple violations of the
Americans with Disabilities Act (ADA).1 (See Compl., Dkt. No. 1.) In a May
8, 2012 Memorandum-Decision and Order, this court granted in part and
denied in part the District’s motion for summary judgment. (See Dkt. No.
25.) As a result of that Order, Troeger’s only remaining claim alleges
failure by the District to accommodate his disability between November 7,
2007 and the end of the 2007-08 school year. (See id.) Pending is the
District’s motion for reconsideration. (See Dkt. No. 28.) For the reasons
that follow, the motion is granted and Troeger’s remaining claim is
dismissed.
II. Standard of Review
“In order to prevail on a motion for reconsideration, the movant must
satisfy stringent requirements.” In re C-TC 9th Ave. P’ship v. Norton Co.,
182 B.R. 1, 2 (N.D.N.Y. 1995). Such motions “will generally be denied
unless the moving party can point to controlling decisions or data that the
court overlooked-matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The prevailing rule
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42 U.S.C. § 12101 et seq.

2

“recognizes only three possible grounds upon which motions for
reconsideration may be granted; they are (1) an intervening change in
controlling law, (2) the availability of new evidence not previously available,
or (3) the need to correct a clear error of law or prevent manifest injustice.”
In re C-TC 9th Ave. P’ship, 182 B.R. at 3 (citation omitted). “[A] motion to
reconsider should not be granted where the moving party seeks solely to
re[-]litigate an issue already decided.” Shrader, 70 F.3d at 257.
III. Discussion
The District contends that reconsideration is appropriate here for the
purpose of correcting clear legal error in the court’s underlying disability
analysis. (See Dkt. No. 28, Attach. 2 at 4-10.) Specifically, it avers that the
court erred, as a matter of law, in finding that a genuine factual dispute
existed as to whether Troeger suffered a substantial limitation of a major
life activity between November 7, 2007 and the end of the 2007-08 school
year. (See id.) Upon reconsideration, the court agrees.
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
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under the first method require of the plaintiff: (1) a showing that he suffers
from a physical or mental impairment; (2) identification of the supposedlyimpaired major life activity; and (3) demonstration of substantial limitation of
that activity. See 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
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)). “[M]ajor 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)
[s]ignificantly 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)). A proper
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substantial limitation analysis considers: “the nature and severity of the
impairment; its duration or expected duration; and the existence of any
actual or expected permanent or long term impact.” Capobianco v. City of
N.Y., 422 F.3d 47, 57 (2d Cir. 2005).
The physical impairment underlying Troeger’s claim is a back injury
which originated in 2004 and was allegedly exacerbated in October 2005.
(See Def.’s Statement of Material Facts (SMF) ¶¶ 6, 23-25, Dkt. No. 12,
Attach. 15.) After narrowing the disability determination to the question of
substantial limitation,2 the court, in its May 8 Order, erroneously found that
a genuine issue of fact existed as to whether Troeger was substantially
limited in his ability to perform the recognized major life activities of, “inter
alia, lift[ing], sit[ting], stand[ing] and work[ing].” (Dkt. No. 25 at 13.)
A.

Lifting
Although a determination of substantial limitation is fact specific, see

Ryan, 135 F.3d at 872, certain lifting restrictions have been found by a
number of courts to be, as a matter of law, insufficient. See, e.g., Cortes v.
Sky Chefs, Inc., 67 F. App’x 66, 68 (2d Cir. 2003) (finding a ten pound
2

Because Troeger argues only that his disability is the result of a physical impairment
that substantially limits certain major life activities, (see Compl.; Dkt. Nos. 14, 30), the court
does not analyze the possible viability of his ADA claim under 42 U.S.C. § 12102(1)’s “record
of” or “regarded as” theories of disability.

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lifting restriction insubstantial); McDonald v. City of N.Y., 786 F. Supp. 2d
588, 609 (E.D.N.Y. 2011) (same, for twenty pounds); Glozman v. Retail,
Wholesale & Chain Store Food Emps. Union, Local 338, 204 F. Supp. 2d
615, 621 (S.D.N.Y. 2002) (same, for ten pounds); see also Colwell v.
Suffolk Cnty. Police Dep’t, 158 F.3d 635, 644 (2d Cir. 1998), superseded
on other grounds by 42 U.S.C. 12102(3)(A), (finding insubstantial the
inability of respective plaintiffs to lift “very heavy objects” or “anything
heavy”).3
On November 17, 2006, approximately one year before the start of
the relevant time period, orthopaedic surgeon Paul Jones opined in a
school-ordered independent medical examination that Troeger “could work
if he avoided bending and lifting more than about 10-15 pounds.” (Dkt. No.
16, Attach. 18 at 2-4.) Troeger’s physician, Dr. Megan McMullan, later
indicated, in November 2007, that he “should be limited to lifting less than
20 pounds.” (Dkt. No 16, Attach. 21 at 2.)
Because Troeger’s lifting limitations fall within the range of

3

While speculation exists as to whether similar lifting restrictions may be sufficient to
establish a disability under the ADA Amendments Act of 2008 (ADAA), see Farina v. Branford
Bd. of Educ., No. 3:09-CV-49, 2010 WL 3829160, at *11 (D. Conn. Sept. 23, 2010), the ADAA,
which became effective on January 1, 2009, does not apply retroactively, and is therefore
inapplicable to the instant analysis, see Stephan v. West Irondequoit Cent. Sch. Dist., 450 F.
App’x 77, 79 n.1 (2d Cir. 2011).

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restrictions which have been deemed insufficient as a matter of law, he has
failed to establish a substantial limitation of the major life activity of lifting.

B.

Sitting and Standing
Much like with lifting, “the inability to sit or stand for an extended

duration does not amount to a substantial limitation on a major life activity.”
Glozman, 204 F. Supp. 2d at 622. Although “a single benchmark against
which to test all sitting limitations” has yet to be established, “courts have
generally found that the inability to sit for periods of an hour or less may
constitute a substantial limitation on the ability to sit, while the ability to sit
for periods longer than an hour does not.” Equal Emp’t Opportunity
Comm’n v. Yellow Freight Sys., Inc., No. 98 CIV. 2270, 2002 WL
31011859, at *13 (S.D.N.Y. Sept. 9, 2002).
On August 24, 2006, Janet Tamai, Doctor of Osteopathic Medicine,
opined that Troeger should engage in “no prolonged sitting, standing,
walking, climbing [or] bending.” (Dkt. No. 16, Attach. 9 at 2.) Following a
request for clarification from District superintendent Lisa Wiles, (see Dkt.
No. 16, Attach. 17 at 5), Dr. Tamai explained that “‘[p]rolonged’ in this case
is over [twenty] minutes,” and that Troeger was “unable to climb [two]
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flights of stairs,” and “should be able to stand up or sit down when he feels
it is necessary to avoid back strain,” (Dkt. No. 16, Attach. 10 at 2). Over
one year later, and before the time period at issue here began, however,
Dr. McMullan—who “cared for [Troeger’s] back condition with Dr. Tamai’s
help,” (Dkt. No. 16, Attach. 21 at 2)—reported that he had “no significant
restrictions on . . . walking, standing, sitting or climbing stairs,” (Dkt. No. 16,
Attach. 23 at 2).
Dr. McMullan’s explicit finding in October 2007 that Troeger had no
significant restrictions on standing or sitting precludes a finding of a
substantial limitation of those major life activities during the relevant time
period.
C.

Working
To establish substantial limitation of the major life activity of working,

it is not enough for a plaintiff to show “‘[t]he inability to perform a single,
particular job.’” Cameron v. Cmty. Aid for Retarded Children, Inc., 335
F.3d 60, 65 (2d Cir. 2003) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). Instead, a
plaintiff must be “‘significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills and abilities.’”
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Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir. 1996)
(quoting 29 C.F.R. § 1630.2(j)(3)(i)).
In September 2007, Dr. McMullan opined that Troeger could “return
to work in a capacity ad lib from part to full time.” (Dkt. No. 16, Attach. 21
at 2.) In a follow-up letter, she clarified that he should be started “at
unrestricted duty part time ([twenty] hours a week) and increase to full time
rapidly if he tolerates this position without significant aggravation of
symptoms.” (Dkt. No. 16, Attach. 23 at 2.) Dr. McMullan further instructed
that Troeger’s “office setting should be optimized for back health, including
ergonomic chair and desk setting,” and that in addition to the twenty-pound
lifting restriction noted above, efforts should be “made to prevent him from
having to physically restrain students.” (Dkt. No. 16, Attach. 21 at 2.)
Following his forced absence for the entirety of the 2006-07 school
year—the reason for which is disputed, (see Pl.’s Statement of Material
Facts (SMF) ¶ 48, Dkt. No. 15; Dkt. No. 16, Attach. 17 at 2)—Troeger
returned to his position as a school counselor on the first day of the
relevant time period, November 7, 2007, (see Dkt. No. 17 ¶ 8). Consistent
with Dr. McMullan’s requests, Troeger initially returned to work on a part

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time basis,4 (see Dkt. No. 12, Attach. 12 at 43), but worked continuously full
time for the remainder of the 2007-08 school year through the 2011-12
school year,5 (see Dkt. No. 12, Attach. 14 at 9).
As Troeger admits to performing his job as a school
counselor—allegedly without the requested ergonomic chair
accommodation—throughout the entire relevant time period and beyond,
he has failed to show significant restriction in his ability to perform a single,
specific job, let alone the requisite class or broad range of jobs. See
Colwell, 158 F.3d at 644-45 (requiring proof of “the kinds of jobs from which
[an] impaired individual is disqualified,” and finding “general restrictions
imposed by [plaintiff’s] doctor” to be insufficient to show significant
restriction). Accordingly, Troeger has failed to establish a substantial
limitation of the major life activity of working.
4

Troeger makes no argument that his initial return to employment on a part time basis
constituted a substantial limitation of his ability to work. In any event, such an argument would
be unavailing. See Zurenda v. Cardiology Assocs., P.C., No. 3:10-CV-0882, 2012 WL
1801740, at *8 (N.D.N.Y. May 16, 2012) (holding that an employee who, at the time of her
discharge worked part time, was not substantially limited in the major life activity of working);
see also Emmons v. City Univ. of N.Y., 715 F. Supp. 2d 394, 409 (E.D.N.Y. 2010) (“[S]hort
term, temporary restrictions are not substantially limiting and do not render a person disabled
within the meaning of the ADA.”) (internal quotation marks and citation omitted).
5

Although not directly related to the back impairment on which Troeger bases his
disability allegations, it should be noted that, in an October 2007 evaluation requested by the
District, Psychologist Richard Ovens indicated that Troeger showed no evidence of being
psychologically unfit to perform the duties of a school counselor, and that he “should return to
work as soon as he is medically approved to do so.” (Dkt. No. 12, Attach. 14 at 42-44.)

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Because Troeger did not experience a substantial limitation of any
major life activities during the relevant time period, he is not disabled under
the ADA. See Duttweiller, 2009 WL 1606351, at *18. Accordingly, he has
failed to establish a prima facie failure-to-accommodate case, and his
remaining claim must be dismissed. See Rodal v. Anesthesia Grp. of
Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004).
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the District’s motion for reconsideration (Dkt. No. 28)
is GRANTED; and it is further
ORDERED that Troeger’s remaining failure-to-accommodate claim
for the period between November 7, 2007 and the end of the 2007-08
school year is DISMISSED; and it is further
ORDERED that Troeger’s Complaint (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.

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August 23, 2012
Albany, New York

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