Carey v. County of Albany
MEMORANDUM-DECISION and ORDER - That the county's 28 Motion for Summary Judgment is GRANTED. That Carey's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 7/28/2016. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOSEPH P. CAREY, SR.,
COUNTY OF ALBANY,
FOR THE PLAINTIFF:
D’Orazio, Peterson Law Firm
125 High Rock Avenue
Saratoga Springs, NY 12866
GIOVANNA A. D’ORAZIO, ESQ.
SCOTT M. PETERSON, ESQ.
FOR THE DEFENDANT:
Albany County Attorney’s Office
112 State Street, Suite 1010
Albany, NY 12207
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Joseph Carey commenced this action against defendant
County of Albany alleging discrimination in violation of the Americans with
Disabilities Act1 (ADA) and New York State Human Rights Law2 (NYHRL).
(Compl., Dkt. No. 1.) Carey also alleges retaliation for engaging in
protected activity in violation of these same statutes. (Id.) Pending is the
county’s motion for summary judgment. (Dkt. No. 28.) For the reasons
that follow, the motion is granted.
Carey worked for the county since October 1982 starting as a
corrections officer at the Albany County Correctional Facility. (Def.’s
Statement of Material Facts (SMF) ¶ 12, Dkt. No. 30.) He served in
different capacities with the county until he was eventually assigned to the
Albany International Airport as a deputy sheriff, where he remained until
January 2013. (Id. ¶¶ 13-17.)
In January 2011, Carey sustained an on-the-job injury requiring neck
surgery that was performed in February 2012. (Id. ¶ 20.) He was on
medical leave from the surgery through April 2012. (Id. ¶ 19.) When
Carey returned to work, the county provided him with a light duty
assignment as a desk clerk at the emergency management division in
See 42 U.S.C. §§ 12101-12213.
See N.Y. Exec. Law §§ 290-301.
Unless otherwise noted, the facts are not in dispute.
Cohoes until July 2012 while he was recuperating from the surgery. (Id.
¶ 21; Pl.’s SMF ¶¶ 152-54, Dkt. No. 34, Attach. 1.) In July 2012, Carey
returned to his regular assignment as a deputy sheriff at the airport.
(Def.’s SMF ¶ 22.)
Carey claimed that he suffered from either a transient ischemic
attack (TIA) or a transient global amnesia (TGA), which are types of
strokes, while on medical leave back in March 2012. (Id. ¶ 23.) As a
result, he was hospitalized for three to four days and sought treatment
from neurologist John Verdini. (Id. ¶¶ 24, 50.) In October 2012, Carey
complained of cognitive difficulties and again sought treatment from Dr.
Verdini. (Id. ¶ 51.) Dr. Verdini referred Carey to clinical
neuropsychologist Michael Long who examined him on two occasions in
December 2012. (Id. ¶¶ 52-53.)
Dr. Long reported that Carey “display[ed] significant residual
cognitive disturbances.” (Dkt. No. 28, Attach. 8 at 4.) He “partially
attribut[ed Carey’s condition] to a mild traumatic brain injury in [January
2011]” and opined that “[r]esidual effects of that trauma seem[ed]
magnified by small vessel disease including an apparent TIA [in March
2012].” (Id.) Dr. Long further opined that Carey’s “experienced difficulties
seem[ed] primarily neurogenic in nature.” (Id.) Ultimately, he
recommended that “[c]onsideration should be given to reassignment to
light duty desk work to accommodate significant cognitive limitations
including slowed processing speed.” (Id. at 4-5.) Carey also testified that
Dr. Long informed him after his neuropsychological testing that he “could
no longer carry a firearm” and “need[ed] a desk job” if he could not afford
to retire. (Dkt. No. 28, Attach. 7 at 30.) In addition, Dr. Long submitted a
declaration in this action summarizing his report. (Dkt. No. 28, Attach. 9.)
In it, he noted that “Carey’s actual abilities could only be ascertained in an
empirical, trial and error fashion within the Albany County Sheriff’s Office,
but [the report] suggested that he would perform most adequately in
controlled circumstances in which he could perform single activities
sequentially in a quiet, non-distracting environment.” (Id. ¶ 6.) After
Carey was treated by Dr. Long, he again sought treatment with Dr. Verdini
who also issued a report opining that Carey was “unable to perform his
current duties as an armed law enforcement officer” and recommended
that he be placed on light duty assignment. (Dkt. No. 34 at 4-5.)
On January 10, 2013, Carey brought Dr. Long’s report to work at the
airport. (Def.’s SMF ¶ 72.) After appearing distressed to his supervisor
Captain Douglas Vogel, Captain Vogel invited Carey into his office along
with Lieutenant Doug Buzzard to discuss the situation. (Id. ¶¶ 73-75.)
Carey informed Captain Vogel and Lieutenant Buzzard about Dr. Long’s
findings regarding his cognitive abilities and expressed concerns about
carrying a firearm. (Id. ¶ 78; Pl.’s SMF ¶¶ 76-77, Dkt. No. 34, Attach. 1.)
Carey then punched out for the day and returned home. (Def.’s SMF
¶ 79.) Captain Vogel informed his superior Undersheriff William Cox
about the meeting with Carey and Lieutenant Buzzard. (Id. ¶ 80.)
Carey subsequently returned to work in civilian clothes without a
firearm. (Id. ¶¶ 81, 83.) Captain Vogel notified him that a meeting was
scheduled to discuss his medical situation with Sheriff Craig Apple,
Undersheriff Cox, Chief Paul Courcelle, Captain Vogel, and himself. (Id.
¶¶ 82, 86.) Undersheriff Cox reviewed Dr. Long’s report in anticipation of
the meeting. (Id. ¶ 84.) At his deposition, Carey testified that before the
scheduled meeting, Captain Vogel told him that he was a liability and
should retire. (Pl.’s SMF ¶ 128.)
On January 16, 2013, all parties met, and Carey explained that he
had been diagnosed with a neurologic condition which precluded him from
carrying a firearm. (Def.’s SMF ¶ 87.) Carey, who was fifty-two years old
at the time, requested to be “put . . . somewhere behind a desk until [he]
turned [fifty-five].” (Id.) After the meeting, the Sheriff’s Office directed
Carey to take a week off from work. (Id. ¶ 90.) Carey testified that
Captain Vogel told him after the meeting that the Sheriff’s Office was
“going to take care of [him, but did not] know where [it was] going to plug
[him] in.” (Dkt. No. 28, Attach. 7 at 61; Def.’s SMF ¶ 130; Pl.’s SMF
¶ 130.) Carey then applied for worker’s compensation benefits as well as
benefits under N.Y. General Municipal Law § 207-c. (Def.’s SMF ¶ 88.)
After the January 16th meeting, Undersheriff Cox contacted Jennifer
Clement, the county’s human resources representative, about Carey’s
light duty request. (Pl.’s SMF ¶ 132.) He learned from her that the county
would deny the request because it was contesting Carey’s worker’s
compensation claim, arguing that his injury was not work related. (Id.) It
is the county’s policy and practice to deny light duty requests if it is
disputed whether the employee was injured while on duty. (Id. ¶¶ 14445.) The county does have light duty positions available, however, it
asserts that these positions are temporary and transitional in nature. (Id.
¶¶ 149-51; Def.’s Supplemental SMF ¶¶ 149-51, Dkt. No. 36, Attach. 1.)
Undersheriff Cox advised Sheriff Apple and Captain Vogel of the
county’s position. (Pl.’s SMF ¶¶ 133, 135.) Some time after, Undersheriff
Cox exchanged an email with Clement stating that Carey had “a
reputation as a hypercondriac [sic] with[in] the Sheriff’s Office.” (Dkt.
No. 34 at 9; Pl.’s SMF ¶ 142.) On January 30, 2013, Carey sent a letter to
Sheriff Apple formally requesting that he be “reassigned to a modified
desk job” as a result of the “[r]eports of Drs. Long and Verdinni [sic].”
(Dkt. No. 28, Attach. 18 at 2.) Sheriff Apple denied the request, citing the
county’s challenge to Carey’s worker’s compensation claim. (Dkt. No. 28,
Attach. 19 at 2; Def.’s SMF ¶ 95.)
Subsequently, Carey informed Sheriff Apple that he would be
retiring from the Sheriff’s Office effective February 28, 2013. (Dkt. No. 28,
Attach. 20.) Sheriff Apple acknowledged Carey’s retirement notice and
thanked him for his thirty years of service. (Dkt. No. 28, Attach. 21.)
Sometime in February 2013, Carey attended a party hosted by the Police
Conference of Northeastern New York, congratulating him on his
retirement. (Def.’s SMF ¶ 103.) Carey currently receives social security
disability and state disability retirement. (Id. ¶¶ 118-20.) As of February
2015, Carey also worked as a part-time driver delivering auto parts. (Id.
Sometime in 2012, Carey contacted New York State to determine
whether his eight years as a corrections officer were eligible towards his
retirement pension. (Id. ¶¶ 104-05.) In February or March 2013, Carey
received a letter from the state notifying him that he was awarded 30.3
years towards his retirement, which included the years Carey served as a
corrections officer. (Id. ¶ 107.) His first pension check reflected this
amount. (Id. ¶¶ 108-09.) The next month, in April 2013, the state
contacted Carey and informed him that they had miscalculated his years
of service. (Id. ¶¶ 110-11.) As a result, his years as a corrections officer
were no longer retirement pension eligible, and Carey received
approximately ten thousand dollars less per year. (Id. ¶¶ 106, 111.)
Shortly thereafter, Carey filed a complaint with the United States
Equal Employment Opportunity Commission alleging retaliation and
discrimination under the ADA. (Dkt. No. 28, Attach. 2 at 4-7.) In April
2014, the EEOC sent Carey a right to sue letter. (Dkt. No. 28, Attach. 4.)
Then, on April 15, 2014, Carey commenced this action against the county.
(See generally Compl.)
III. Standard of Review
The standard of review pursuant to 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,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
The county argues that Carey cannot meet his burden to prove that
he could perform the essential functions of a deputy sheriff, such as
carrying a firearm, with or without a reasonable accommodation. (Dkt.
No. 29 at 4-9.) The county also asserts that it sufficiently engaged in an
interactive process with Carey to accommodate him, but, in any event,
failure to do so is not actionable. (Id. at 16-18.) Carey counters that
factual disputes remain over whether he could perform the essential
functions of the position. (Dkt. No. 34, Attach. 2 at 5-11.) Specifically,
Carey contends that the court should evaluate whether he could perform
the essential functions of a desk job within the Sheriff’s Office rather than
“Aside from the broader scope of covered disabilities under New York Executive Law
§ 296, [a plaintiff’s] state law reasonable accommodation claim is ‘governed by the same legal
standards as federal ADA claims.’” Cody v. Cty. of Nassau, 345 F. App’x 717, 719 (2d Cir.
2009) (quoting Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d Cir.
2004). For that reason, unless otherwise noted, the court analyzes Carey’s parallel state
discrimination claim along with his ADA claim.
an active duty deputy sheriff. (Id. at 6-7.) In addition, Carey asserts that
factual issues exist regarding whether the county failed to provide a
reasonable accommodation because light duty positions were available
that would not place an undue burden upon the county. (Id. at 13-16.)
Finally, Carey argues that the county failed to sufficiently engage in an
interactive process which is actionable under state law. (Id. at 16-20.)
An employer may 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
was an individual who has a disability within the meaning of the statute; 2)
the employer had notice of his disability; 3) he could perform the essential
functions of the job with reasonable accommodation; and 4) the employer
refused to make such accommodation.” DeRosa v. Nat’l Envelope Corp.,
595 F.3d 99, 102 (2d Cir. 2010) (internal quotation marks and citation
omitted); see Brown v. State Univ. of N.Y., No. 3:12-cv-411, 2015 WL
729737, at *7 (N.D.N.Y. Feb. 19, 2015).
“An accommodation is reasonable ‘if its costs [and burdens on the
employer] are not clearly disproportionate to the benefits that it will
produce.’” Fowler v. Kohl's Dep’t Stores, Inc., No. 1:07-CV-1197, 2009
WL 2155481, at *5 (N.D.N.Y. July 16, 2009) (quoting Borkowski v. Valley
Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)). At the same time, “‘an
employer is not required to accommodate an individual with a disability by
eliminating essential functions of the job.’” Id. (quoting Borkowski, 63 F.3d
“‘[T]he identification of the essential functions of a job requires a
fact-specific inquiry into both the employer’s description of a job and how
the job is actually performed in practice.’” Id. (quoting Borkowski, 63 F.3d
at 140). “Under guidelines accompanying EEOC regulations enacted
pursuant to the ADA, courts are instructed to first determine ‘whether the
employer actually require[d] employees in the position to perform the
functions that the employer asserts are essential.’” Shannon v. N.Y.C.
Transit Auth., 332 F.3d 95, 101 (2d Cir. 2003) (quoting 29 C.F.R.
§ 1630.2(n)). “If so, ‘the inquiry will then center around whether removing
the function would fundamentally alter that position.’” Id. (quoting 29
C.F.R. § 1630.2(n)). “[C]ourt[s] must give considerable deference to an
employer’s judgment regarding what functions are essential.” Rodal v.
Anesthesia Grp of Onondaga, P.C., 369 F.3d 113, 120 (2d Cir. 2004)
(internal quotation marks and citations omitted). “But ultimately, the
question whether a task constitutes an essential function depends on the
totality of the circumstances.” Id. at 120.
The only disputed element is whether Carey could perform the
essential functions of his job. At the outset, Carey contends that the court
should look to whether he could perform the essential functions of a desk
clerk within the Sheriff’s Office. (Dkt. No. 34, Attach. 2 at 6-7.) Carey,
however, relies on readily distinguishable authority for this proposition. In
Stone v. City of Mount Vernon, 118 F.3d 92, 93 (2d Cir. 1997), a disabled
firefighter requested an accommodation to be assigned to the Fire Alarm
Bureau, a permanent, light duty unit. See 118 F.3d at 93. The Second
Circuit found that the district court should have analyzed the essential
functions of a firefighter assigned to that bureau rather than an active
firefighting bureau. See id. at 99. Here, no such permanent positions
exist for deputy sheriffs and, thus, Stone is distinguishable. (Def.’s SMF
¶ 156; Dkt. No. 28, Attach. 14 ¶¶ 14-17.) For that reason, the court must
only evaluate whether Carey could perform the essential functions of a
To determine the essential functions, courts may look to evidence
such as job descriptions, the time spent performing certain job duties, and
the employer’s judgment regarding the importance of certain functions.
See 29 C.F.R. § 1630.2(n)(3); see also Stone, 118 F.3d at 97. Among
other requirements, the job description of a county deputy sheriff states
that “[c]andidate[s] must be eligible to carry a firearm at [the] time of
appointment and throughout employment.” (Dkt. No. 28, Attach. 15 at 2.)
Undersheriff Cox testified to the same. (Dkt. No. 28, Attach. 6 at 11.)
Additionally, deputy sheriffs are called to “[k]eep records and make
reports” as well as exercise “[g]ood judgment” and possess “[g]ood
powers of observation.” (Dkt. No. 28, Attach. 15 at 2.) The county’s
policy for members assigned to patrol requires that they “must always be
alert for potential hazards and . . . dangers.” (Dkt. No. 28, Attach. 16 at
4.) Specifically, at the Albany International Airport, where Carey was
assigned, deputy sheriffs had to be knowledgeable about federal, state,
and local procedures for handling bomb threats and security issues at
screening points, on the aircrafts, and throughout the terminal. (Dkt.
No. 28, Attach. 17 at 3.) Finally, in his declaration, Undersheriff Cox
stated that essential functions of deputy sheriffs included: “the ability to
remember events and circumstances necessary for keeping records and
making reports; the ability to effectively carry out arrests; the ability to
safely and effectively respond to emergency situations; the ability to
receive, apprehend, and remember orders of various kinds; and the ability
to carry a firearm.” (Dkt. No. 28, Attach. 14 ¶ 10.)
Carey contends that it is disputed whether these duties are essential
functions of a deputy sheriff, citing the county’s willingness to find light
duty positions for individuals injured on the job pursuant to N.Y. General
Municipal Law § 207-c. (Pl.’s SMF ¶¶ 28-33.) Carey, however,
misapprehends the law as it relates to the ADA. “[T]here is no
requirement under the ADA that defendants create a new light duty
position.” Hudson v. W. N.Y. Bics. Div., 73 F. App’x 525, 529 (2d Cir.
2003); see King v. Town of Wallkill, 302 F. Supp. 2d 279, 291 (S.D.N.Y.
2004) (“An employer is not . . . obligated to create a new light-duty
position for a disabled employee or make permanent previously temporary
light-duty positions.”). Here, it is undisputed that a vacant permanent,
light duty position did not exist when Carey made his request. (Dkt.
No. 28, Attach. 5 at 29; Dkt. No. 28, Attach. 7 at 65; Dkt. No. 28, Attach.
14 ¶ 13.) In fact, the Sheriff’s Office does not employ any deputy sheriff to
serve in a permanent, light duty capacity. (Dkt. No. 28, Attach. 14 ¶¶ 1417.) Consequently, the county had no obligation to create Carey’s
requested accommodation. See Hudson, 73 F. App’x at 529; King, 302 F.
Supp. 2d at 291. Because Carey does not challenge the county’s proof
on any other basis, there is no actual dispute over the essential functions
of a deputy sheriff. Cf. McMillian v. City of N.Y., 711 F.3d 120, 126-27 (2d
Cir. 2013) (denying summary judgment where a dispute remained over
whether the plaintiff’s timely arrival to work was an essential function of
her job because her tardiness had been implicitly approved and the
employer permitted a “flex-time policy” allowing “all employees to arrive
and leave within one-hour windows”).
Here, Carey has failed to make the requisite showing that he could
perform the essential functions of a deputy sheriff with or without an
accommodation. See McBride, 583 F.3d at 96-97. By his own admission,
Carey could not perform at least some of the duties of a deputy sheriff,
namely, carrying a firearm or making arrests. (Def.’s SMF ¶¶ 34, 48-49;
Pl.’s SMF ¶ 34.) In addition, Carey concedes that he had trouble with his
short term memory, which impacted writing reports, following through with
orders, and remembering to be prepared with the proper equipment or
paperwork. (Def.’s SMF ¶¶ 35-40, 43-44, 47.) Carey also testified that
his reaction time and ability to process information had slowed. (Id. ¶¶ 42,
45.) Finally, Carey indicated that stress exacerbated his impairments. (Id.
¶ 46.) The reports of Drs. Long and Verdini corroborate Carey’s
testimony. (Dkt. No. 28, Attach. 8; Dkt. No. 34 at 4-5.) Furthermore,
Carey has failed to identify an accommodation short of a permanent light
duty assignment that would allow him to perform as a deputy sheriff. See
McBride, 583 F.3d at 97 (“An ADA plaintiff does not satisfy h[is] burden to
identify a potential accommodation merely by reciting the formula that h[is]
employer could have reassigned h[im].”). Because Carey has not raised a
genuine issue of fact on any element of his disability discrimination claims,
see Wagner, 827 F. Supp. 2d at 92, the court grants summary judgment
in the county’s favor.
To that end, Carey’s argument that summary judgment should be
denied because the county failed to engage in an interactive process also
fails. Under the ADA, “failure to engage in an interactive process does not
form the basis of an ADA claim in the absence of evidence that
accommodation was possible.” McBride, 583 F.3d at 100. Assuming
without deciding that the county failed to engage in an interactive process,
here, as discussed above, Carey has not provided any evidence that such
an accommodation was possible. Although the NYHRL has a more
demanding standard in this regard, see Jacobsen v. N.Y. City Health &
Hosps. Corp., 22 N.Y.3d 824, 837 (2014), the facts compel the same
result because Carey’s requested accommodation was limited to a
permanent light duty position, which was patently unreasonable.
Finally, Carey contends that the county has a “100% healed policy”
which violates the ADA. (Dkt. No. 34, Attach. 2 at 11-12.) Carey,
however, fails to adduce any proof of a county policy aside from his own
testimony that Captain Vogel told him to return to work “one hundred
percent.” (Dkt. No. 28, Attach. 7 at 62); cf. EEOC v. Yellow Freight Sys.,
No. 98 CIV. 2270, 2002 WL 31011859, at *20 (S.D.N.Y. Sept. 9, 2002)
(holding an explicit policy requiring that an employee may only return to
work without physical restrictions violated the ADA). Accordingly, this
argument likewise fails.
The “NYHRL contain[s] similar provisions against retaliation and [is] governed in this
respect by the same standards as the ADA.” Treglia v. Town of Manlius, 313 F.3d 713, 719
(2d Cir. 2002). For that reason, unless otherwise noted, the court analyzes Carey’s parallel
state retaliation claim along with his ADA claim.
The county contends that Carey cannot sufficiently allege retaliatory
action because there is no causal link between Carey’s request for a light
duty assignment and his alleged forced retirement. (Dkt. No. 29 at 19-21.)
Carey argues that he requested this reasonable accommodation, which
was denied, and then, in retaliation for that request, was forced into
retirement. (Dkt. No. 34, Attach. 2 at 23-24.) Carey contends that factual
questions remain regarding causation. (Id. at 24.) Specifically, Carey
highlights the temporal proximity between his request and his “forced
retirement” as well as Captain Vogel and Undersheriff Cox’s animus
against his request. (Id.)
To defeat a motion for summary judgment on a retaliation claim, a
plaintiff must demonstrate:
 that [he] engaged in protected participation or opposition
under [the ADA],  that the employer was aware of this
activity,  that the employer took adverse action against the
plaintiff, and  that a causal connection exists between the
protected activity and the adverse action, i.e., that a retaliatory
motive played a part in the adverse employment action.6
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.
2001) (internal quotation marks and citation omitted). However, “the
Courts use the Title VII framework to evaluate retaliation claims under the ADA. See
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001).
prima facie case establishes only a rebuttable presumption of retaliation.”
El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932 (2d Cir. 2010) (citation
omitted). The burden of production then shifts to the employer to present
a legitimate non-retaliatory reason for the adverse employment action.
See Treglia v. Town of Manlious, 313 F.3d 713, 721 (2d Cir. 2002). “If the
[employer] provides such an explanation, the presumption of retaliation
dissipates, and the plaintiff must prove that the desire to retaliate was the
but-for cause of the challenged employment action.” Ya-Chen Chen v.
City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (internal quotation marks
and citation omitted).7
The parties appear to contend that the only element at issue in the
prima facie analysis is whether a causal connection existed between
Carey’s request for a light duty assignment and his alleged forced
retirement. (Dkt. No. 29 at 19-21; Dkt. No. 34, Attach. 2 at 22-25.) The
court, however, takes issue with another element: the county’s purported
adverse action. Essentially, Carey argues that the county took adverse
Although it remains an open question in the Second Circuit, see Wesley-Dickinson v.
Warwick Valley Cent. Sch. Dist., 586 F. App’x 739, 745 n.3 (2d Cir. 2014), other circuits and
district courts within this circuit have applied the but-for standard found in Title VII retaliation
claims to ADA retaliation claims, see Sherman v. Cty. of Suffolk, 71 F. Supp. 3d 332, 348-49
(E.D.N.Y. 2014) (collecting cases), rather than the less demanding motivating factor standard,
see Wesley-Dickinson, 586 F. App’x at 746. The court, however, need not resolve this issue
because Carey fails to demonstrate any basis for his claim.
action against him by denying his accommodation request and forcing him
into retirement because he could not perform his job as a deputy sheriff.
As reasoned above, the court determined that Carey could not perform
the essential functions of that position. The county correctly recognizes
that Carey’s argument is circular. (Dkt. No. 29 at 20.) A plaintiff cannot
assert that he is unable to perform a job, even with a reasonable
accommodation, and, at the same time, claim his employer retaliated
against him by preventing him from performing that job. See Sheahan v.
Dart, No. 13-cv-9134, 2015 WL 1915246, at *6 (N.D. Ill. Apr. 23, 2015)
(finding that “because the protected activity [p]laintiff alleges he engaged
in was requesting accommodations, the denial of such requests can
hardly be considered unlawful retaliation for the act of requesting them.”);
see also Pagliaroni v. Daimler Chrysler Corp., No. 04-C-1213, 2006 WL
2668157, at *9 (E.D. Wis. Sept. 15, 2006). Because Carey cannot
demonstrate adverse action on the part of the county, his retaliation claim
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the county’s motion for summary judgment (Dkt.
No. 28) is GRANTED; and it is further
ORDERED that Carey’s complaint (Dkt. No. 1) is DISMISSED; and it
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.
July 28, 2016
Albany, New York
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