Frantti v. State of New York et al
Filing
48
MEMORANDUM-DECISION & ORDER granting 42 Motion for Summary Judgment; and Frantti's amended complaint is DISMISSED. The Clerk of the court is directed to enter a judgment accordingly and close the file. Signed by Judge David N. Hurd on 10/29/2019. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------TRAVIS JARRETT FRANTTI,
Plaintiff,
-v-
1:16-CV-810
STATE OF NEW YORK, SUSAN
KNAPP, MARY BETH LABATE,
KAREN DAVIS, KAREN ORCUTT,
CHRISTOPHER AMADO, and
ROBERT MUJICA,
Defendants.
---------------------------------APPEARANCES:
OF COUNSEL:
PETERSON, THOMAS LAW FIRM
Attorneys for Plaintiff
49 Burlington Avenue
P.O. Box 578
Round Lake, NY 12151
THOMAS W. PETERSON, ESQ.
HON. LETITIA JAMES
Attorney General of the State of New York
Attorneys for Defendants
The Capitol
Albany, NY 12224
KEITH J. STARLIN, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On July 5, 2016, plaintiff Travis Jarrett Frantti ("Frantti" or "plaintiff"), a former
employee of the State of New York ("New York State" or the "State"), filed this civil rights
action against defendants New York State and State employees Susan Knapp ("Knapp"),
Mary Beth LaBate ("LaBate"), Karen Davis ("Davis"), Karen Orcutt ("Orcutt"), Christopher
Amado ("Amado"), and Robert Mujica ("Mujica") (collectively the "individual defendants").
Frantti asserted claims against New York State and the individual defendants
(collectively "defendants") for disability discrimination under § 504 of the Rehabilitation Act
(First Cause of Action), employment discrimination and retaliation under Titles I and V of the
Americans with Disabilities Act ("ADA") (Second Cause of Action), and a claim for the denial
of Equal Protection under 42 U.S.C. § 1983 (Third and Fourth Causes of Action).
On September 9, 2016, defendants moved under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) seeking partial dismissal of Frantti's civil rights complaint. In particular,
defendants sought pre-answer dismissal of (1) the Rehabilitation Act claim against the
individual defendants; (2) the ADA claims against the individual defendants and New York
State; and (3) the third or fourth constitutional claim, since the two were arguably duplicative
of each other.1
On March 8, 2017, a Memorandum–Decision & Order issued granting defendants'
partial motion to dismiss, Frantti v. State of N.Y., 2017 WL 922062 (N.D.N.Y. Mar. 8, 2017),
except insofar as it concluded Frantti had alleged an official-capacity claim under the ADA for
prospective injunctive relief; i.e., the individual defendants' alleged failure to restore plaintiff
to his prior job title. Id. at *5-*6 (concluding ADA's discrimination and retaliation provisions do
not provide for individual liability and that such claims asserted against the State itself were
barred by Eleventh Amendment immunity). Thereafter, plaintiff filed an amended complaint
1
Plaintiff pleaded a free-standing claim for a violation of 42 U.S.C. § 1983 (Third Cause of Action)
separately from a claim alleging the denial of his right to Equal Protection (Fourth Cause of Action). As
defendants correctly argued in the motion to dismiss, a § 1983 claim cannot stand alone—it must be paired
with the alleged violation of a constitutional right.
-2-
that conformed his remaining claims to the determinations set forth in this MDO. Dkt. Nos.
21, 22.
Consequently, the parties went to discovery on Frantti's (1) Rehabilitation Act claim
against New York State; (2) ADA claim for prospective injunctive relief against the individual
defendants in their official capacities; and (3) § 1983 claim alleging the denial of Equal
Protection. Frantti, 2017 WL 922062, at *7.
On March 22, 2019, defendants moved under Rule 56 for summary judgment on
Frantti's remaining claims. According to defendants, plaintiff cannot establish that he
suffered from a qualifying disability for purposes of either the Rehabilitation Act or what
remains of his ADA claim, but that even if he could do so, the accommodation or
accommodations he apparently sought for that disability were totally unreasonable—in
defendants' view, plaintiff wanted some kind of complete exemption from, inter alia, the job
performance and attendance policies that were applicable to his fellow State employees.
The motion has been fully briefed and will be considered on the basis of the
submissions without oral argument.
II. BACKGROUND2
In 1992, Frantti graduated from the University at Albany with a bachelor's degree in
political science. Pl.'s Dep. Vol. 1, Dkt. No. 42-4, 50:23-51:3 (" Dep. Vol. 1"). After spending
a gap year caring for his ill grandmother, plaintiff began graduate work at the University of
2
Frantti failed to comply with Local Rule 7.1(a)(3), which among other things requires the party
opposing summary judgment to file a response that mirrors the movant's statement of material
facts. N.D.N.Y.L.R. 7.1(a)(3). The penalty for non-compliance with this mandate is clear: "The Court shall
deem admitted any properly supported facts . . . that the opposing party does not specifically controvert" in
this responsive filing. Id. Although this rule will be discussed and applied infra when analyzing whether
plaintiff's claims should survive summary judgment, a significantly more detailed factual recitation is set forth
here to assist the reader with better understanding this confusing dispute.
-3-
South Carolina. Id. at 51:4-13. Plaintiff went on to complete two years of study, but moved
home before finishing up his master's thesis. Id. at 51:14-17.
Back home in New York, Frantti re-enrolled at the University at Albany, this time
working toward a graduate degree in public administration. Dep. Vol. 1 at 51:18-23. In his
second year, plaintiff interned with the New York State Division of the Budget ("DOB"), a
government entity responsible for developing and executing the yearly budget adopted by the
State's legislature. Id. at 51:23-52:2, 54:12-19, 58:5-18; see also Our Mission, NEW YORK
STATE DIVISION OF THE BUDGET, https://www.ny.gov/agencies/division-budget (last visited Oct.
9, 2019).
A. DOB Hires Frantti
In July of 1996, Frantti graduated with his master's degree and DOB hired him on
full-time as a budget examiner in the Public Protection Unit ("PPU"). Dep. Vol. 1 at 58:4-11,
15-22; Frantti Aff., Dkt. No. 44-1, ¶¶ 16-17. PPU is the DOB unit responsible f or "overseeing
the budgets of general government and public protection agencies" like the Division of
Criminal Justice Services ("DCJS"). Knapp Decl., Dkt. No. 42-27, ¶ 1.
DOB divides up work within the department by assigning its budget examiners with
oversight responsibility for groupings of various State agencies, and in Frantti's case this
initially included the Commission on Judicial Conduct, the Capitol Defender's Office, and the
Departments of Banking and Insurance. Dep. Vol. 1 at 59:2-10. T hereafter, DOB promoted
plaintiff to the title of senior budget examiner and, after he spent five or six good years in that
position, to the title of associate budget examiner. Id. at 59:19-22, 60:1-4, 60:17-20; see also
Frantti Aff. ¶¶ 18-22.
-4-
In 2004, DOB appointed Susan Knapp to the title of PPU Unit Chief ("PPU Unit Chief
Knapp"), a position that included supervisory responsibility over Frantti and other budget
examiners in the PPU. Frantti Aff. ¶¶ 18, 20. A few years later, still under PPU Unit Chief
Knapp's supervision, DOB promoted plaintiff again, this time to Acting Section Head of the
PPU. Id. ¶ 21. As Action Section Head, plaintiff assumed oversight responsibility for an
additional set of New York State agencies. Id. Thereafter, PPU Unit Chief Knapp added to
plaintiff's workload by adding another State agency to his list of responsibilities. Id. ¶ 22.
B. Frantti Gets Promoted to Grade 31
In September of 2010, DOB promoted Frantti to the title of "principal fiscal policy
analyst," a "non-competitive" salary Grade 31 position "in civil service terms." Dep. Vol. 1 at
61:15-62:7, 188:18-22. According to plaintiff, principal fiscal policy analyst is a "coveted" title
that is "rarely employed" at DOB. Frantti ¶ 23.
This kind of "non-competitive" position gave DOB executive personnel the discretion
to promote certain employees into a higher salary grade than they might otherwise be
qualified for under the ordinary criteria set forth in the regular, "competitive" civil service
system. Dep. Vol. 1 at 64:3-11. Coveted or not, though, a so-called "non-competitive" civil
service position is an "at will" job that does not include any of the traditional civil service
protections available to other State employees. Knapp Decl. ¶ 7.
The way Frantti ended up in this non-competitive Grade 31 position is a little
complicated. As plaintiff explains, the general, competitive civil service track that aspiring
DOB employees follow begins at the title of budget examiner, then advances through the
titles of senior budget examiner, associate budget examiner, principal budget examiner,
assistant unit chief, unit chief, deputy budget director, and is finally capped off at budget
-5-
director. Dep. Vol. 1 at 63:20-64:3.
The process of advancing through this well-defined civil service track involves scoring
well on a series of examinations that are administered periodically by the New York State
Civil Service Commission. Dep. Vol. 1 at 65:17-18. These exams are broken up into a few
different components, but the two that come up in this case are (1) a written test and
evaluation, known by some employees as a "T&E"; and (2) a six-month review period called
the Behavioral Performance Assessment Program, or "BPAP." Id. at 65:17-66:6; Pl.'s Dep.
Vol. 3, Dkt. No. 42-6, 52:17-18, 54:3-7 ("Dep. Vol. 3").
Frantti had not yet passed the Grade 31 civil service promotion exam when DOB
elevated him to the non-competitive title of principal fiscal policy analyst. Dep. Vol. 1 at
65:14-67:15; 63:13-19. As plaintiff explains, he had taken the Grade 31 exam once before,
but failed the T&E portion due to his admitted "arrogance" and "poor judgment." Id. at
68:12-69:14; see also Knapp Decl. ¶ 6.
Luckily for Frantti, however, a principal budget examiner had left DOB and plaintiff had
been given all of this former employee's work assignments in addition to his own. Dep. Vol.
1 at 61:20-62:1; see also Frantti Aff. ¶¶ 23-24. In plaintiff's understanding, the fact he was
now doing the work of two people provided his supervisors with "justification" to promote him
to the non-competitive Grade 31 title of principal fiscal policy analyst. Dep. Vol. 1 at
62:18-23. According to PPU Unit Chief Susan Knapp, she had recommended plaintiff for the
promotion in the hopes that he would score well the next time he took the Grade 31 exam
and become eligible for a regular, competitive position at DOB in the near future. Knapp
Decl. ¶ 7.
On November 29, 2010, still in his non-competitive placement, Frantti began the
-6-
process of re-taking the Grade 31 civil service exam. Knapp Decl. ¶ 15. Around this time,
the Governor's Office also retooled DOB's tasks and responsibilities, shifting it away from
policy work and toward the more mundane work of implementing technical transactional
controls. Id. ¶ 9.
In PPU Unit Chief Knapp's opinion, the former was one of Frantti's strengths while the
latter was an area of weakness, and as a result plaintiff's job performance began to
suffer. Knapp Decl. ¶¶ 9-14. Plaintiff does not directly deny this general assertion about his
job performance, but insists that he remained engaged in his work and always attended to
this more technical part of his job with "diligence and care." Frantti Aff. ¶¶ 25-26.
On July 2, 2012, Frantti learned that he had passed the Grade 31 civ il service
exam. Dep. Vol. 1 at 69:19-70:14. However, he had scored relatively poorly. In fact, his civil
service score put him at the bottom of the list of eligible employees, which meant his
supervisors remained unable to promote him through the competitive civil service track. Id.
at 70:14-18, 71:12-17; see also Knapp Decl. ¶ 15.
According to PPU Unit Chief Knapp, the New York State Civil Service Commission
began at this time to pressure DOB and other State agencies to reduce their reliance on
"non-competitive" positions like the one Frantti held at DOB. Knapp Decl. ¶ 16. This
pressure made it "increasingly difficult to justify keeping plaintiff in his 'non-competitive' salary
grade 31 position instead of returning plaintiff to his 'competitive' salary grade 27
[position]." Id.
Notably, Frantti continued to retain a "hold item" on his prior, competitive Grade 27
position. In civil service jargon, this "hold item" would allow plaintiff to eventually return to his
prior salary grade and its accompanying civil service protections if he were ever removed
-7-
from the non-competitive Grade 31 job. Knapp Decl. ¶ 8.
C. Frantti Gets Sick
In July of 2012, Frantti and a group of his friends headed up to Oxbow Lake in the
Adirondacks to do some fishing. Dep. Vol. 1 at 48:7-13, 49:6-9. Shortly after returning home
from this vacation, plaintiff began to experience an onslaught of unpleasant, intermittent
gastrointestinal problems that would last for the next eleven months. Dep. Vol. 1 at 50:3-4,
112:6-19; see also Frantti Aff. ¶ 30.
The severity and precise combination of Frantti's symptoms varied by the day, but
generally included lethargy, nausea, lack of appetite, unsteadiness, bilateral stomach pain,
occasional vomiting, recurrent diarrhea, and uncontrollable sweating. Dep. Vol. 1 at
113:5-116:21, 126:13-15, 127:23-129:8, 130:18-131:12.
Although these symptoms caused him to miss "a number of days" at the office when
he returned to work in late July, Frantti did his best to continue life as normal while his
doctors tried to figure out the root cause of his mysterious illness. Frantti Aff. ¶¶ 3, 30. In
August, plaintiff received an offer to work DCJS, a different agency, on some special projects
"associated with Alternative to Incarceration Programs." Dep. Vol. 1 at 196:17-23.
The precise details of who made this offer to Frantti, and for what reasons, are in
dispute. See Frantti Aff. ¶ 29. Plaintiff maintains that the offer came from Deputy Secretary
of Public Safety Liz Glazer ("Deputy Secretary Glazer"), the person who "oversaw every
criminal justice agency in the State of New York." Dep. Vol. 1 at 212:10-14.
PPU Unit Chief Knapp, on the other hand, explains that Mary Kavaney ("Deputy
Assistant Kavaney"), a personal friend of Frantti's and the Assistant to Deputy Secretary
Glazer, thought plaintiff "seemed unhappy" with his current work assignment in the PPU and
-8-
thought a change of scenery might be good for him. Knapp Decl. ¶ 17; Dep. Vol. 1 at
231:15-233:10. In PPU Unit Chief Knapp's telling, Deputy Assistant Kavaney hoped plaintiff
would "thrive[ ]" if given a new role. Knapp Decl. ¶ 18.
In either case, Frantti, thinking it would be a good "resume builder," accepted the offer
to move over to DCJS. Dep. Vol. 1 at 192:22-193-7, 197:7-22. Plaintif f claims that he told
PPU Unit Chief Knapp, still one of his supervisors at DOB, that he only intended to stay in
this new assignment for one year before returning to work with DOB. Id. at 199:2-6. PPU
Unit Chief Knapp, however, claims that the DCJS assignment was not "in any way
[temporary] or of any kind of finite or limited duration." Knapp Decl. ¶ 19.
D. Frantti Joins DCJS
Beginning on August 20, 2012 and going forward, Frantti considered himself to be "on
loan status" to DCJS. Dep. Vol. 1 at 196:8-16; see also Frantti Aff. ¶ 31. Plaintiff's new
assignment came with a new supervisor, DCJS Deputy Commissioner Jay Kiyonaga ("DCJS
Deputy Kiyonaga"). Dep. Vol. 1 at 195:14-16; Davis Decl., Dkt. No. 42-72, ¶ 6.
Frantti's new assignment also came with a new office, and he moved from the first
floor of the Capitol building into an office in Stuyvesant Plaza, a nearby building that housed
DCJS staff. Dep. Vol. 1 at 193:16-194:8. Notably, however, plaintiff's "on loan status" with
DCJS meant that Mike Matthews, a supervisor back at DOB, continued to sign off on
plaintiff's time records, and plaintiff's paychecks continued to come from DOB. Dep. Vol. 1 at
195:18-196:12; see also Knapp Decl. ¶ 18.
At first, Frantti did not have any particular, day-to-day work responsibilities within
DCJS. Dep. Vol. 1 at 199:14-19. During the downtime associated with this initial transition
period, plaintiff took the opportunity to tell DCJS Deputy Kiyonaga, his new supervisor, about
-9-
his ongoing gastrointestinal illness. Frantti Aff. ¶ 6 n.2; Dep. Vol. 1 at 48:18-49:5.
However, in early September of 2012, "a note went out" informing the heads of
various New York State criminal justice agencies that Frantti had assumed responsibility for
working on programs that dealt with alternatives to incarceration. Dep. Vol. 1 at
199:20-200:3; see also Ex. A to Davis Decl., Dkt. No. 42-73 (e-mail announcing plaintiff's
addition to DCJS's "public safety team").
Thereafter, it became Frantti's job to "listen[ ] to [the agency heads'] priorities" and
relay this information to Deputy Secretary Glazer. Dep. Vol. 1 at 200:17-19. Plaintiff also
attended meetings and helped draft legislation to secure more funding for these and related
programs. Id. at 200:19-201:12.
In the meantime, though, Frantti's medical problems continued. From late October
through mid-December of 2012, plaintiff missed "significant work time" when his illness
"flared up." Frantti Aff. ¶ 3. Plaintiff soon came to believe he had contracted "giardia" on his
trip to the Adirondacks. Dep. Vol. 1 at 48:7-17; see also Frantii Aff. ¶¶ 6 n.2, 30. Giardia is a
microscopic, waterborne parasite that can cause diarrhea and other g astrointestinal
problems in its host. See Dep. Vol. 1 at 48:7-17.
During this period, Frantti underwent a series of medical examinations and several
bouts of testing in an attempt to determine the root cause of his illness. Dep. Vol. 1 at
48:21-49:5; Franti Aff. ¶ 6 n.2. Among other things, Alan Fogel, M.D., plaintiff's primary care
provider, referred him to a gastroenterologist, who sampled plaintiff's stool for the presence
of the giardia parasite on multiple occasions. Dep. Vol. 1 at 48:23-49-23. However, three
different stool tests came back "inconclusive," and plaintiff did not receive a giardia diagnosis
as a result of these tests. Id. at 49:21-23.
- 10 -
On November 27, 2012, Frantti received a message from DCJS Deputy
Commissioner Marc Bonacquist ("DCJS Deputy Bonacquist") letting him know that DCJS
Deputy Kiyonaga had left the agency to take on a different job. Frantti Aff. ¶ 39. Thereafter,
DCJS Deputy Commissioner Terry Salo ("DCJS Deputy Salo") became plaintiff's new direct
supervisor at DCJS. Id.; see also Dep. Vol. 1 at 195:15-18. According to plaintiff, DCJS
Deputy Kiyonaga's departure caused his reason for being at DCJS to "largely
evaporate[ ]." Frantti Aff. ¶ 39. However, plaintiff "continued to do meaningful work" for
Deputy Secretary Glazer. Id.
In January of 2013, DCJS moved its offices from Stuyvesant Plaza to the Alfred E.
Smith Building, a different New York State facility. Dep. Vol. 1 at 194:19-195:11. According
to plaintiff, the move "didn't sit very well with the staff," who "lost their free parking and
everything else." Id. at 195:11-13. The move certainly did not sit well with plaintiff, who lost
his office and moved into a cubicle. Frantti Aff. ¶ 41.
E. Frantti's Illness Begins to Draw Scrutiny
Between January of 2013 and May of 2013, Frantti continued to suffer gastrointestinal
symptoms and his attendance at work was "sporadic." Frantti Aff. ¶ 6 n.2. When plaintiff did
come to work, he displayed outward symptoms of distress. Id. For instance, plaintiff
exhibited "sweating and a flushed face," "was frequently in the bathroom," and would "at
times go home to take showers and change [ ] clothes throughout the work
day." Id. According to plaintiff, it was only a "5-minute walk" to and from his office. Id. ¶ 19.
In March of 2013, Frantti asked Deputy Assistant Kavaney if he could be moved to the
Office of Probation and Correctional Alternatives ("OPCA"), a different department within
DCJS. Frantti Aff. ¶ 41. The next month, plaintiff's symptoms worsened and he missed "a
- 11 -
significant amount of time" at work. Frantti. ¶ 6 n.2.
Near the end of April, Deputy Assistant Kavaney ordered Frantti to undergo an alcohol
assessment. Dep. Vol. 1, 237:7-13; see also Frantti Aff. ¶ 43. According to plaintiff, Deputy
Secretary Glazer and Deputy Assistant Kavaney met with him and explained that they were
"concerned about [his] health [ ] and appearance." Frantti Aff. ¶ 43.
On April 26, 2013, Frantti underwent the alcohol assessment ordered by Deputy
Assistant Kavaney. Frantti Aff. ¶ 44. The examiner concluded that "there was no alcohol
problem and anything that was showing in [plaintiff's] outward appearance was only
associated with health problems [he] was experiencing." Dep. Vol. 1 at 238:13-18; see also
Frantti Aff. ¶ 45.
Even so, Deputy Secretary Glazer and Deputy Assistant Kavaney reprimanded
plaintiff by placing a "counseling memo" in his personnel file. Dep. Vol. 1 at 238:7-12; see
also Frantti Aff. ¶ 46. There is some disagreement about whether the reprimand occurred in
spite of the fact plaintiff had passed the alcohol assessment or because of a different
alcohol-related incident in which Deputy Assistant Kavaney smelled alcohol on plaintiff's
breath during a "hastily called meeting" that required plaintiff to come into work on a weekend
evening. Compare Dep. Vol. 1 at 225:13-21, with id. at 238:19-239:11.
Because Frantti enjoyed a personal friendship with Deputy Assistant Kavaney, he
acknowledged that she had observed him consume alcohol at work functions and other
occasions. See, e.g., Dep. Vol. 1 at 239:12-241:2. However, plaintiff contends he had never
been reprimanded on this basis before. Frantti ¶ 43.
Frantti further asserts that this counseling memo caused the "poisonous suggestion
that [he] had a drinking problem" to "make its way into [his] professional life" even though
- 12 -
"the issue had been conclusively resolved by the professional evaluation" ordered by
DCJS. Frantti ¶ 48.
On May 13, 2013, DCJS re-assigned Frantti to work in OPCA, the inter-department
change he had requested from Deputy Assistant Kavaney back in March. Frantti Aff. ¶ 42;
Adams Decl., Dkt. No. 42-28, ¶ 6.
The next day, Frantti met with his new direct supervisor, DCJS Executive Deputy
Director John Adams ("DCJS Deputy Adams"), and DCJS Director Robert Maccarone
("DCJS Director Maccarone"), to discuss his new placement with OPCA. Adams
Decl. ¶ 9. Because plaintiff's physical symptoms continued to cause him to miss time at work
throughout this period, DCJS Deputy Adams instructed plaintiff to e-mail him directly if he
was not going to arrive at work by 9:30 a.m., the start of OPCA's working day. Id.
F. Frantti Recovers
In June or July of 2013, Frantti, by then desperate for a cure, contacted the Albany
Medical Center for Infectious Diseases and requested "Flagyl," a type of medicine used to
treat giardia. Dep. Vol. 1 at 50:2-13; Frantti Aff. ¶ 49. Although no medical provider ever
actually diagnosed plaintiff with giardia, Dr. Kennedy, a physician at the Albany Medical
Center, agreed to prescribe plaintiff a ten-day course of Flagyl anyway. Dep. Vol. 1 at
49:21-50:12. Plaintiff began the treatment immediately, and all of his various gastrointestinal
symptoms cleared up by the fifth day. Id. at 50:11-12; 124:11-15. see also Frantti Aff. ¶ 49.
But Frantti's troubles were not over. In June or July of 2013, Deputy Secretary Glazer
departed from State service. Dep. Vol. 1 at 201:20-202:8. According to plaintiff, Deputy
Secretary Glazer's departure meant that the "reason for [his] assignment [at DCJS] ceased to
exist." Frantti Aff. ¶ 39. In plaintiff's view, Deputy Secretary Glazer was the person who
- 13 -
initially convinced him to sign on to DCJS and had been the source of plaintiff's work
assignments at DCJS since his move over from DOB. Dep. Vol. 1 at 200:17-202:23.
With Deputy Secretary Glazer gone, Frantti believed that he had no meaningful work
assignments. Dep. Vol. 1 at 203:11-19; see also Frantti Aff. ¶ 68. Plaintiff felt that he was in
a "limbo state" because "nobody knew what to do with [him]" after Deputy Secretary Glazer
left. Dep. Vol. 1 at 212:2-5. In fact, plaintiff testified that:
A.
I would go to work, sit in an office on the third floor in the
Office of Probation and Correctional Alternatives and try to
make the best of it . . . .
....
Q.
But during that period of time from June of 2013 . . . , what
was your typical day at work like? What did you do on a
typical day of work during that period of time?
A.
I showed up, went to work, followed Capital [sic] Confidential
[a regional news site] on the internet. I did nothing.
Dep. Vol. 1 at 203:14-17, 211:5-12. Indeed, plaintif f estimates that "85-95%" of his time at
work was "unoccupied" during this time period. Frantti Aff. ¶ 67.
At this point, Frantti attempted to leave DCJS and return to DOB. Dep. Vol. 1 at
205:18-206:5. On August 28, 2013, plaintiff e-mailed DOB Administrative Officer Karen
Orcutt ("DOB HR Officer Orcutt") to ask what he "would need to do to make [his] return [to
DOB] happen." Ex. A to Orcutt Decl., Dkt. No. 42-53, p. 2. 3
DOB HR Officer Orcutt responded the same day, explaining that DOB's "needs have
not changed and therefore [Frantti's] placement at DCJS will continue" for now. Ex. A to
Orcutt Decl. at p. 2; see also Dep. Vol. 1 at 207:9-14. DOB HR Officer Orcutt's response
3
Pagination corresponds to CM/ECF.
- 14 -
further explained that while plaintiff could return to his "hold item" at Grade 27 if he wanted to
get his civil service protections back, he would still remain assigned to DCJS for the
foreseeable future. Id.
Frantti replied back, asking about the status of his Grade 27 civil service "hold
item." Ex. A to Orcutt Decl. at p. 2. Although a "hold item" can expire, the New York State
Civil Service Commission can approve an extension under certain circumstances. Orcutt
Decl., Dkt. No. 42-52, ¶ 12. DOB HR Officer Orcutt again e-mailed plaintiff back, letting him
know that DOB had actually just requested an extension on plaintiff's behalf, but were waiting
to hear back. Ex. A to Orcutt Decl. at p. 1.
During this period, Frantti applied to positions that were available back at
DOB. Frantti Aff. ¶ 26. Plaintiff claims, "upon information and belief," that he was "not
considered" for the openings to which he applied. Id.; see also id. ¶ 66 (claiming DOB failed
to take him back because he was "damaged goods"). Notably, a civil service "hold item" like
the one plaintiff maintained on his Grade 27 position guaranteed him a specific salary grade,
not a specific work assignment. Orcutt Decl., Dkt. No. 42-52, ¶ 12.
Frantti continued working at OPCA. Adams Decl. ¶¶ 10-16. DCJS Deputy Adams,
who supervised plaintiff during this period, believes that plaintiff routinely failed to display the
typical work habits expected of a Grade 31 employee. Id. ¶ 16. Among other things, DCJS
Deputy Adams believed that plaintiff lacked initiative, frequently asked for extensions on
assignments, and seemed to lack interest in the projects to which he had been
assigned. Id. Equally problematic, plaintiff was frequently absent from his work station for
extended periods and could not be located. See, e.g., Ex. E to Adams Decl., Dkt. No. 42-33,
pp. 1, 3, 9.
- 15 -
On August 29, 2013, Frantti e-mailed DOB HR Officer Orcutt again, this time
expressing concern that the New York State Civil Service Commission's next meeting would
not occur until September 10, a date on which his "hold item" at Grade 27 would have
already expired. Ex. A to Orcutt Decl. at p. 1. DOB HR Officer Orcutt's response explained
that any extension approved by the State Civil Service Commission would be retroactive, and
in any event even an unapproved extension would allow plaintiff "an opportunity to return to
the competitive hold item" at Grade 27. Id.
G. Frantti Draws Renewed Scrutiny
In September of 2013, after about three months of near-constant downtime at work,
Frantti decided he should let someone at DCJS know that he had nothing to do. Pl.'s Vol. 1
at 203:14-23. Plaintiff sought out DCJS Human Resources Management Director Karen
Davis ("DCJS HR Director Davis"), told her that his "health felt better," and asked for some
new work assignments. Dep. Vol. 1 at 204:7-20.
On September 25, 2013, DOB HR Officer Orcutt sent Frantti a letter informing him that
the New York State Civil Service Commission had approved the extension of his Grade 27
"hold item" until March 1, 2014. Ex. B to Orcutt Decl., Dkt. No. 42-54.
Shortly thereafter, Frantti was called to a meeting at which DCJS HR Director Davis,
DOB HR Officer Orcutt, DCJS Deputy Bonacquist, and Erin Ryan ("HR Officer Ryan"),
another HR officer, were present. Dep. Vol. 1 at 124:18-23; see also Pl.'s Dep. Vol. 2, Dkt.
No. 42-5, 371:10-15 ("Dep. Vol. 2").
Together, these officials informed Frantti that he would no longer be working in the
special DCJS role that Deputy Secretary Glazer had carved out for him and would in fact be
subject to a two-month performance evaluation to determine whether he was still "working at
- 16 -
a Grade 31 level" at all. Dep. Vol. 1 at 188:14.
According to DOB HR Officer Orcutt, the New York State Civil Service Commission's
six-month extension of Frantti's "hold item" at Grade 27 required DOB to figure out how to
place plaintiff going forward; i.e., whether to try to extend plaintiff's hold item again (keeping
him at the non-competitive Grade 31 position a while longer) or to just return plaintiff to the
competitive Grade 27 position outright. Orcutt Decl. ¶¶ 15-16. In DOB HR Officer Orcutt's
view, a formal, written evaluation of plaintiff's work performance would help DOB make an
informed decision about that choice. Id. ¶ 16.
Frantti, however, found this two-month evaluation unexpected and unfair. Dep. Vol. 1
at 247:3-14. Plaintiff perceived the evaluation to be an "over-reaction" to a single instance in
which he had been late to work as a result of oversleeping. Frantti Aff. ¶ 59. Concerned,
plaintiff reached out to a quasi-union organization for non-competitive employees, who told
him that this two-month evaluative period was "extremely unusual." Dep. Vol. 1 at 247:3-14.
Unusual or not, Frantti's evaluation took place in the two-month period between
October 30 to December 31, 2013. Dep. Vol. 2 at 300:9-11; see also Dep. Vol. 1, 248:12-22.
Plaintiff's direct supervisor, DCJS Deputy Adams, took responsibility for conducting the
evaluation and met with plaintiff periodically to discuss work assignments with him. Adams
Decl. ¶¶ 21-22.
Frantti contends that he "was not given any grade 31 work to do" during this period
even though he repeatedly requested "more challenging" or "more meaningful" work
"commensurate with [his] experience." Frantti Aff. ¶ 50; Dep. Vol. 1 at 253:4-19. Plaintif f
claims that he made these requests of DCJS Deputy Adams, DCJS Director Maccarone, and
DOB HR Officer Orcutt. Dep. Vol. 1 at 250:11-251:1. Plaintif f contends that these requests
- 17 -
were "denied without explanation." Id. at 250:11-17.
Instead, Frantti claims he received assignments that he believed were "low level,
menial work," such as updating outdated lists of probation office contact numbers for each
county across the State. Dep. Vol. 1 at 246:13-247:2; see also Frantti Aff. ¶ 50
(characterizing his work assignments as "exclusively clerical"). Plaintiff contends this
evaluation was "clearly a smoke-screen to permit the removal of [his] Grade 31
status." Frantti Aff. ¶ 52.
On November 5, 2013, Frantti took a "floating holiday" off from work without providing
DCJS Deputy Adams, his supervisor, any advance notice. Ex. E to Adams Decl. at p. 17. In
an e-mail sent after the fact, DCJS Deputy Adams provided plaintiff with the relevant DCJS
policy on floating holidays (which differed from the one employed by DOB) and requested
that plaintiff provide him with advance notice in the future. Id.
H. Frantti Gets Sick Again
In December of 2013, several people in Frantti's office at DCJS "came down with a
stomach bug." Dep. Vol. 1 at 125:19:22. Although plaintiff had been virtually symptom-free
until this point, plaintiff suddenly experienced a recurrence of the same gastrointestinal
issues he had previously suffered through until mid-2013. Id. at 126:8-11. This time around,
the physical symptoms would last for nearly three years, refusing to clear up until plaintiff
eventually resigned from State employment in July of 2016. Id. at 127:9-14.
The recurrence of Frantti's physical symptoms caused him to begin missing more time
at work. For instance, on December 30 and 31, 2013, plaintiff took unscheduled
leave. Adams Decl. ¶¶ 27-28. Although plaintiff e-mailed DCJS Deputy Adams to let him
know, Adams replied by asking plaintiff to make sure he calls in by 11:00 a.m. each day in
- 18 -
accordance with DCJS's written call-in policy. Id. In plaintiff's view, his supervisors began to
"magnif[y]" these kind of "trivial violations" in an effort to "either build a case to eventually
terminate [his] employment or to force [him] to resign." Frantti Aff. ¶ 57.
In January of 2014, Frantti's gastrointestinal condition "worsened" and plaintiff missed
"nearly the entire month" of work. Frantti Aff. ¶ 6 n.2; see also Adams Decl. ¶¶ 35-40.
Among other limitations, the abdominal discomfort plaintiff felt often made it impossible for
him to sit at his desk during the working day. Dep. Vol. 1 at 139:9-140:5.
Frantti's symptoms forced him to get up from his desk and "walk[ ] up and down the
hall" for "roughly five or ten minutes" on a frequent basis. Dep. Vol. 1 at 139:16-141:7. T his
occurred between "five to a dozen" times each day plaintiff worked, though the precise
number of these walking breaks varied. Id. at 141:8-18.
In addition, Frantti would visit the bathroom "on average, six to ten times a day" for
"anywhere between two to ten minutes." Dep. Vol. 1 at 165:23-167:3. On these occasions,
plaintiff frequented a private, locked bathroom on the third floor of his building. Id. at
166:10-21. However, plaintiff also "preferred the privacy of [the bathroom in his] own home"
and would sometimes leave work for that purpose. Id. at 172:18-173:22.
According to Frantti, he still lived only a "short block" away from the office during this
time. Dep. Vol. 1 at 173:16-22. No one ever prevented plaintiff from going to the
bathroom—at work or at home—during this period of time. Id. at 173:23-174:5. However, on
several occasions, plaintiff's supervisors reprimanded him for not being present at his desk
when they came to speak with him about work assignments. Id. at 138:7-9; see also Frantti
Aff. ¶ 75.
- 19 -
I. Frantti Tries to Leave DCJS
On January 7, 2014, Frantti e-mailed DCJS HR Director Davis as a "first step in
determining how to proceed in returning to DOB." Ex. B to Davis Decl., Dkt. No. 42-74, p. 4.
As plaintiff describes it, this e-mail explained that he had been receiving "only clerical
assignments" at OPCA and that he wanted out of DCJS. Frantti Aff. ¶ 61.
In Frantti's view, this e-mail also put DCJS HR Director Davis on notice that he felt
"singled out" and "harassed" by the two-month performance evaluation DCJS had conducted
at the end of 2013. Dep. Vol. 2 at 322:9-324:3. Plaintif f's e-mail also expressed concern
about the fact that he had been moved from his office into a cubicle shortly after Deputy
Secretary Glazer left. Id. at 324:9-17. According to plaintiff, it was "unusual for a Grade 31
individual" to be put in a cubicle. Id.
On January 8, 2014, DCJS HR Director Davis replied to Frantti's e-mail, explained that
she had "no authority to influence [the] process" of returning to DOB, and suggested that
plaintiff contact DOB's HR Office "to see if they, as your employer, can assist you in current
and future career opportunities there." Ex. B to Davis Decl. at p.1.
Between January 13, 2014, and May 28, 2014, Frantti illness caused him to be in and
out of work. Dep. Vol. 2 at 429:2-10. For instance, there were periods where he was "out
several days in a row" and then there were "days where [he] was out partial days, then a full
day and then a partial day." Id. at 429:6-10; see also Orcutt Decl. ¶ 28 (noting plaintiff was
absent from work for "significant periods of time" through February 2014); Adams Decl. ¶ 40
(noting that plaintiff "was barely in the office" after January 31, 2014).
On January 21, 2014, Frantti received a letter from DOB HR Officer Orcutt about the
Family Medical Leave Act ("FMLA"). Dep. Vol. 2 at 357:23-359:4; see also Ex. C to Orcutt
- 20 -
Decl., Dkt. No. 42-55. This letter enclosed a "medical certification form" that, once
completed by a health care provider, would permit the State to determine whether plaintiff
qualified for leave under the FMLA. Id. Thereafter, plaintiff made an appointment with Dr.
Fogel, his primary care doctor, to figure out whether FMLA leave might be helpful to
him. Dep. Vol. 2 at 359:13-360:9.
On January 31, 2014, Frantti was called to a meeting with DOB HR Officer Orcutt,
DCJS HR Director Davis, DCJS Deputy Adams, and HR Officer Ryan to discuss a recent
work incident. See Ex. C to Orcutt Decl. at pp. 3-4; see also Frantti Aff. ¶ 62.
According to DOB HR Officer Orcutt, Frantti had been "visibly agitated and loudly
disruptive in the DCJS office that morning," complaining about being stuck at DCJS in front of
other DCJS employees. Orcutt Decl. ¶ 24. At this meeting, the supervisory team warned
plaintiff that his behavior was "below expectations" for an employee of his position. Frantti
Aff. ¶ 63. The outcome of this meeting was later memorialized in a February 7, 2014
counseling memo. Ex. C to Orcutt Decl. at pp. 3-4.
Frantti acknowledges this incident but characterizes it differently. In his telling, plaintiff
had asked some of the other employees whose work stations were located near him "if they
had wondered why [he] was there and what [he] did and why [he] was a Grade 31 . . . with
little or nothing to do." Dep. Vol. 2 at 269:19-270:2, 271:21-272:4. Plaintif f denies "yelling or
shouting" and insists "there were no angry exchanges." Frantti Aff. ¶ 62.
In any event, Frantti kept missing work. On February 11, 2014, DOB HR Officer
Orcutt sent plaintiff a letter informing him that he would be removed from his non-competitive
Grade 31 position and reinstated to the lower, competitive Grade 27 position. Ex. C to Orcutt
Decl. at p. 10; see also Frantti Aff. ¶ 63. According to DOB HR Officer Orcutt, this decision
- 21 -
was made in part as a result of the two-month performance evaluation.4 Orcutt Decl. ¶¶ 23,
26. As a result of this change in grade, plaintiff suffered a $15,000 reduction in his salary.
Dep. Vol. 1 at 249:17-250:8. According to plaintiff, this was the first "unsatisfactory" or
"below expectations" evaluation he had ever received. Dep. Vol. 2 at 365:20-366:11; Frantti
Aff. ¶ 81.
On February 28, 2014, DOB HR Officer Orcutt sent Frantti a follow-up letter inquiring
about whether or not plaintiff would be submitting a medical certification form under the
FMLA. Ex. C to Orcutt Decl. at p.11. According to this letter, plaintiff had not yet submitted
one he had been sent in mid-January and therefore his repeated absences from work could
not yet be designated as FMLA leave. Id.
Frantti's attendance problems continued through March. On March 28, 2014, plaintiff
received a letter from DCJS HR Director Davis and DCJS Deputy Adams stating that he had
missed more than twenty-five full days of work since December 30, 2013. Ex. J to Adams
Decl., Dkt. No. 42-38 ("March 28 Memo"); see also Dep. Vol. 2, 397:12-398:5, 403:13-16,
404:5-10. As a result of these continued absences, plaintiff was placed on "documentation
status" for the next six months, a DCJS policy that required him to provide medical
documentation for any full or partial day absences due to illness. Ex. J to Adams Decl.
Frantti acknowledges that this more onerous "one-day note requirement" was a
regular component of DCJS employee policy at the time. Dep. Vol. 2 at 404:10-11; see also
Davis Decl. ¶ 11 (explaining it was "standard DCJS policy to place employees who have
4
Frantti believes that PPU Unit Chief Knapp made this decision. Pl.'s Vol. 2, 137:6-23. Notably,
plaintiff testified that PPU Unit Chief Knapp is the same supervisor who initially promoted him to Grade 31 in
the first place. Pl.'s Vol. 2, 267:19-268:20.
- 22 -
excessive unscheduled absences" on this requirement). According to DCJS HR Director
Davis:
Placing plaintiff on a one-day medical excuse note requirement did
not mean that he had to come in and hand in a medical excuse note
every day even if he was out of work multiple days in a row. He
could provide one medical excuse note that covered multiple days
of absence and he just had to provide that when he eventually
returned to work. He could also provide a note that covered multiple
days in a row going forward if he wished. He could also simply fax
it in, or have his doctor fax it in.
Davis Decl. ¶ 10; see also Adams Decl. ¶ 47.
Frantti, however, interpreted this requirement to mean that:
A. One of the things I was required to do was to write a medical
note if I missed partial time, so, say, for example, I was sick and I
started to feel better around noon. Well, in which case I would have
to find time to go to a doctor's office, make an appointment with the
doctor's office, wait for the doctor's officer, see the doctor and then
return to work and provide the doctor's note in that time, which
essentially would be a fully workday by the time all that stuff would
happen in going to see a doctor for having just missed a partial day
rather than a full day.
Dep. Vol. 2 at 45:16-476:4.
On March 31, 2014, nearly two months after he first received it from HR, Frantti finally
provided DOB with an FMLA medical certification form completed by Dr. Fogel. Ex. F to
Orcutt Decl., Dkt. No. 42-58. This form did not diagnose a particular medical condition but
merely characterized plaintiff's ongoing illness as "unpredictable exacerbations of dizziness,
nausea, and gastrointestinal dysfunction." Id. at p. 2. According to Dr. Fogel's certification,
plaintiff would be "unable to attend work or perform assigned duties" during "episodic
flare-ups" of "variable" and "unpredictable" duration that were likely to occur "0-3" times per
month for "1-3" days at a time. Id. at p. 2-3.
- 23 -
J. Frantti Takes FMLA Leave
On April 3, 2014, DOB HR Officer Orcutt sent Frantti a letter approving a period of
FMLA leave made retroactive to mid-January of 2014. Ex. C to Orcutt Decl. at p. 14; see
also Dep. Vol. 1 at 138:3-139:8; Dep. Vol. 2 at 361:19-365:4. T hereafter, DOB received an
amended FMLA medical certification form that indicated plaintiff could be expected to suffer
"episodic flare-ups" "1-3" times per month for "3-24" hours per episode. Ex. G to Orcutt
Decl., Dkt. No. 42-59. The amended form further indicated that plaintiff might need "5-10"
minute "breaks" every "2-3" hours. Id.
Notably, Frantti's DCJS supervisors rescinded the one-day medical note requirement
shortly after he finally submitted his FMLA paperwork. On April 4, 2014, DCJS HR Director
Davis and DCJS Deputy Adams met with plaintiff to discuss the parameters of his FMLA
leave. See Ex. C to Davis Decl., Dkt. No. 42-75, p.1. In a follow-up e-mail, DCJS HR
Director Davis sent plaintiff some additional FMLA information and specifically "lift[ed] the
requirement that [plaintiff] provide [ ] documentation for every absence." See id.
However, the e-mail also reminded Frantti that he remained obligated "to follow the
protocols set in place for all DCJS employees, including the call-in procedure as described
[in their meeting]." Ex. C to Davis Decl. at p. 1. Finally, the e-mail referred plaintiff to the
appropriate section of the DCJS employee handbook for further information. Id.
On April 28, 2014, still on FMLA leave, Frantti served on a jury during a two-week
trial. Adams Decl. ¶ 52; see also Dep. Vol. 3 at 709:20-717:5. Plaintiff did not require any
accommodations for his gastrointestinal problems during the trial. Dep. Vol. 3 at 716:20-22.
However, Frantti continued to take unscheduled leave from work following the
completion of his jury service. Adams Decl. ¶¶ 52-53. Plaintiff insists that "[a]ny attempts
- 24 -
[he] made to expand the scope of [his work] duties were discouraged" during this
period. Frantti Aff. ¶ 83. According to DCJS Deputy Adams, however, plaintiff's frequent
partial and full-day absences prevented him from assigning plaintiff "anything even
approaching a normal workload." Adams Decl. ¶ 54.
For example, on May 28, 2014, DCJS Deputy Adams went looking for Frantti at his
desk but could not find him. Adams Decl. ¶ 56. At around 1:00 p.m., DCJS Deputy Adams
called plaintiff's cell phone to ask why he had not followed DCJS's call-in policy. Id. Plaintiff
answered and claimed that he was too sick to make it to the phone, but would try to come in
later. Id.
On June 3, 2014, Frantti violated DCJS's call-in policy again. Adams Decl. ¶ 57.
According to DCJS Deputy Adams, plaintiff called to say he would be late, but never showed
up to work at all that day. Id. DCJS Deputy Adams claims that plaintiff again failed to follow
the call-in policy just two days later. Id. ¶ 58. When DCJS Deputy Adams called plaintiff's
cell phone to ask why he had failed to come to work on that occasion, plaintiff said that he
had been asleep. Id. These sorts of recurrent violations of the DCJS call-in policy continued
to occur on DCJS Deputy Adams's watch. See, e.g., Adams Decl. ¶¶ 59, 61-62.
K. Frantti's Leave Expires
On June 9, 2014, DCJS HR Director Davis sent Frantti a letter informing him that he
had exceeded his approved period of FMLA leave. Ex. C to Orcutt Decl. at p. 15. This letter
accused plaintiff of failing to comply with "verbal and written directives" from DCJS Deputy
Adams that instructed plaintiff to "call in within two hours of the start of [any] work day" in
which he would be absent. Id. This letter also contemplated "possible disciplinary
action." Id.
- 25 -
On June 17, 2014, DCJS HR Director Davis sent DOB HR Officer Orcutt a letter
stating that DCJS recommended withholding Frantti's yearly salary increase as a result of his
"documented poor performance and insubordination." Ex. H to Orcutt Decl., Dkt. No. 42-60.
DOB HR Director Orcutt forwarded this adverse recommendation to the DOB Budget
Director, who approved it. Orcutt Decl. ¶ 35. Plaintiff was denied a 2014 salary increase. Id.
On July 8, 2014 DOB HR Officer Orcutt sent Frantti a letter informing him that he had
exhausted his FMLA coverage as of May 28, 2014. Ex. C to Orcutt Decl. at p. 17. This letter
re-imposed the one-day medical excuse note requirement in accordance with DCJS
policy. Id.; see also Davis Decl. ¶ 14.
On July 10, 2014, DOB HR Officer Orcutt sent Frantti a letter directing him to appear
at a hearing that would be conducted in accordance with Section 75 of the Civil Service
Law. Ex. C to Orcutt Decl. at p. 18. According to DOB HR Officer Orcutt, DOB convened the
hearing to consider whether plaintiff should be disciplined for his repeated violations of
DCJS's call-in policy. Orcutt Decl. ¶ 36.
Frantti, who associates a Section 75 hearing with "the procedure for terminating an
employee," contends that the use of the Section 75 hearing in this case "was a knowing
attempt to terrify [him.]" Frantti Aff. ¶¶ 64, 77. Following that hearing, plaintiff signed a
"settlement in lieu of discipline" that indicated a Letter of Reprimand would be placed in his
personnel file. Ex. C to Orcutt Decl. at p. 31 (July 30, 2014 memo).
On September 18, 2014 DOB HR Officer Orcutt sent Frantti a letter detailing 62
additional hours of "unscheduled absences" between July 28 and August 27, 2014 for which
plaintiff had failed to provide medical documentation. Ex. C to Orcutt Decl. at p. 32-33. This
letter reminded plaintiff that DCJS policy required plaintiff to provide a doctor's note and to
- 26 -
notify his supervisor within two hours of his assigned start time. Id.
On October 7, 2014, DOB HR Officer Orcutt sent Frantti a letter explaining that DOB
had received medical documentation from Dr. Fogel. Ex. C to Orcutt Decl. at p. 34. This
letter explained that DOB considered this doctor's note suf ficient to excuse plaintiff's 62
hours of recent absences. Id. However, this letter also reminded plaintiff that DCJS policy
required him to submit medical documentation for any unscheduled absences at the end of
each pay period. Id. This letter further explained that any medical documentation going
forward "must specify the dates and times of each excused absence." Id.
Frantti continued to miss full and partial days of work throughout October and
November of 2014. Orcutt Decl. ¶ 40. Then, between November 12, 2014, and November
30, 2014, plaintiff only showed up for one day of work. Adams Decl. ¶ 63.
On November 13, 2014, and again on December 11, 2014, Frantti wrote to DOB HR
Officer Orcutt and DCJS HR Director Davis asking for an accommodation "which would allow
[his] physician to write excuses after an accumulated amount of absence from work rather
than being required to be seen by his physician daily for an excuse." Dep. Vol. 2 at
451:5-12, 453:6-12. According to plaintiff, neither HR official responded to this request. Id.
at 473:14-16. Plaintiff did not follow up on either letter. Id. at 473:17-20.
Frantti believed this "accommodation" to be a necessary one because Dr. Fogel, his
primary care physician, felt "burden[ed]" by the requirement of writing repeated notes. Dep.
Vol. 2, 474:2-19. As plaintiff explains:
A. One of the things I was required to do was to write a medical
note if I missed partial time, so, say, for example, I was sick and I
started to feel better around noon. Well, in which case I would have
to find time to go to a doctor's office, make an appointment with the
doctor's office, wait for the doctor's office, see the doctor and then
- 27 -
to return to work and provide the doctor's note in that time, which
essentially would be a full workday by the time all that stuff would
happen in going to see a doctor for having just missed a partial day
rather than a full day.
Dep. Vol. 2 at 475:16-476:4. Plaintiff further testified that Dr. Fogel refused to write notes
without actually seeing him in person for each day he was sick. Id. at 477:1-14.
L. Frantti Tries Short-Term Leave
In December of 2014, Frantti began a six-month "short-term disability leave." Dep.
Vol. 2 at 503:16-504:2; see also Ex. I to Orcutt Decl., Dkt. No. 42-60. During the 2014
calendar year, plaintiff had been absent for a full or partial day on 240 different working
days. Adams Decl. ¶ 79.
Frantti's short-term leave meant that he was no longer obligated to submit any medical
notes or call-in to work when he felt sick. Orcutt Decl. ¶ 40. However, plaintiff would not be
paid a salary during this period unless his disability insurer approved his claim. Id. At some
point thereafter, the insurer denied his claim. Dep. Vol. 2, 508:18-509:2, 510:22-511:10.
In January of 2015, Mary Beth Labate became the DOB's Budget Director ("DOB
Budget Director Labate"). Labate Decl., Dkt. No. 42-76, ¶¶ 2, 7. Among other things, DOB
Budget Director Labate oversaw the Administrative Services Unit ("ADU"), the operating unit
within DOB responsible for human resources and administrative matters. Id. ¶ 8.
In May of 2015, Frantti informed DOB that he intended to return to work from his
short-term leave of absence. Orcutt Decl. ¶¶ 43-44. In response, DOB directed plaintif f to
provide a doctor's note "medically clearing" him to return to work. Id. ¶ 44. Later that month,
plaintiff wrote to DOB Budget Director Labate to complain about his mistreatment. Dep. Vol.
3 at 524:7-525:12; Ottaviano Decl. ¶ 13; Frantti Aff. ¶ 94.
- 28 -
Frantti also sent this letter to DCJS HR Director Davis, DOB HR Officer Orcutt, and
Mike Green, the head of DCJS. Dep. Vol. 3 at 525:3-15. He did not receive a response from
any of these officials. Id. at 525:22-23. However, one of these officials referred plaintiff's
letter to the Governor's Office of Employee Relations ("GOER") for an investigation. Dep.
Vol. 3 at 526:1-8; see also Ottaviano Decl. ¶ 13.
GOER engaged Richard Snyder, an Affirmative Action Officer employed by the New
York State Department of Health ("Officer Snyder"), to investigate the allegations in Frantti's
May 2015 letter. Dep. Vol. 3 at 525:20-529:3; see also Ex. K to Ottaviano Decl., Dkt. No.
42-25 (July 30, 2015 report).
Officer Snyder reached out to Frantti, and the two had "multiple discussions" about
plaintiff's work situation. Dep. Vol. 3 at 525:20-529:3. Plaintif f also gave Officer Snyder a
packet of information, but never heard back after that. Id. at 534:5-21. According to Officer
Snyder's report, he recommended "no further action" be taken in response to plaintiff's
complaint. Ex. K to Ottaviano Decl., Dkt. No. 42-25, p.8. 5
In June of 2015, DOB Budget Director Labate approved the denial of Frantti's 2015
salary increase. Labate Decl. ¶ 16. This recommendation again came from DCJS HR
Director Davis, who cited plaintiff's alleged "poor work performance" and repeated failure to
follow DCJS time and attendance policies. Orcutt Decl. ¶ 42.
On June 9, 2015, Dr. Fogel sent DOB a letter medically clearing Frantti to return to
work. Ex. L to Orcutt Decl., Dkt. No. 42-64. Notably, this letter did not include any work
5
Officer Snyder would later investigate the allegations in plaintiff's second civil rights complaint and
conclude that both were "without merit." Ex. L to Ottaviano Decl., Dkt. No. 42-26, p. 5 (September 25, 2015
report). Both reports are stamped as "draft." However, defendants contend that both are in fact the "final"
reports generated by Officer Snyder. Plaintiff does not appear to contest this precise issue, but in any event
the information is presented only for context and therefore the distinction is immaterial.
- 29 -
restrictions. Id. Plaintiff returned from his six-month leave the next day. Orcutt Decl. ¶ 49.
M. Frantti Returns to Work
On June 10, 2015, his first day back at work, Frantti received another "below
expectations" performance evaluation from DCJS Deputy Adams, primarily as a result of his
failure to comply with DCJS's attendance policy. Dep. Vol. 3, 535:3-17; see also Adams
Decl. ¶ 66. According to this document, "[t]here were times when [plaintiff] would call after
the call-in time, not call, and other times when he did not show up for a whole day of work as
expected." Id. at 539:14-17. This evaluation covered the period between April 1, 2014
through March 31, 2015. Labate Decl. ¶¶ 18, 20; Orcutt Decl. ¶ 50.
Later in June of 2015, Frantti administratively appealed from this "below expectations"
performance evaluation. Labate Decl. ¶¶ 18, 20; Orcutt Decl. ¶ 50. While plaintiff waited to
hear back about the status of this appeal, he continued to struggle with DCJS's time and
attendance policies, repeatedly missing full or partial days of work. Orcutt Decl. ¶ 51.
According to DOB HR Officer Orcutt, DCJS HR Director Davis "wanted to pursue disciplinary
action against plaintiff as a result of his repeated and continued violations of DCJS call-in
policy." Orcutt Decl. ¶ 52.
On June 17, 18, and 23, Frantti again violated the DCJS call-in policy. Adams
Decl. ¶¶ 72-75. Near the end of the month, plaintiff wrote to DOB HR Officer Orcutt to
request a reassignment to DOB and to complain about how the upcoming BPAP portion of
the Grade 31 examination plaintiff had signed up to re-take would be administered. Ex. M to
Orcutt Decl., Dkt. No. 42-65.
In Frantti's view, his ongoing placement at DCJS was "improper," put him at "a severe
disadvantage to the other candidates," and would prevent him from passing the exam. Ex. M
- 30 -
to Orcutt Decl. DOB HR Officer Orcutt's response denied plaintiff's request to return to DOB
and noted that "candidates are not entitled to new assignments for the purpose of the
exam." Id.
On July 2, 2015, several things happened. First, DCJS reassigned Frantti to its Office
of Finance's Budget Unit. Pl.'s Vol. 2 at 350:6-12; see also Adams Decl. ¶ 86; Frantti
Aff. ¶ 72. Going forward, Budget Unit Supervisor Chris Amado ("DCJS Supervisor Amado")
directly supervised plaintiff. Amado Decl., Dkt. No. 42-42, ¶ 5. On his first day, plaintiff met
with DCJS Supervisor Amado and DCJS Office of Finance Chief Budget Analyst Carol
Rochester ("DCJS Chief Analyst Rochester") to discuss the nature of plaintiff's new
role. Amado Decl. ¶ 10.
Among other things, Frantti was again informed of the DCJS call-in policy even though
he refused to sign the form acknowledging he had received it. Amado Decl. ¶ 10. DCJS
Supervisor Amado also informed plaintiff that he would be observing and evaluating plaintiff's
performance on the BPAP portion of the Grade 31 examination. Id. ¶ 114. Plaintiff again
objected to this arrangement. In plaintiff's view, DCJS Supervisor Amado, a lower grade
employee with fewer years of experience, should not be assigned to review him. Dep. Vol. 3
at 568:7-570:18.
Second, at DCJS's request, DOB arranged for Frantti to be examined by the New York
State Department of Civil Service Employee Health Services ("EHS") to determine his fitness
to perform the duties of his job as Associate Budget Examiner. Ex. C to Orcutt Decl. p. 35.
Third, Frantti submitted the first of two civil rights complaints to the New York State
Division of Human Rights ("DHR"). Pl.'s Vol. 3 at 625:12-16; see also Ex. A to Ottaviano
Decl., Dkt. No. 42-15 (copy of complaint notarized on July 1, 2015).
- 31 -
Frantti's first DHR complaint alleged disability discrimination and retaliation against the
DOB, DOB Budget Director Labate, DOB HR Officer Orcutt, and PPU Unit Chief Knapp
arising from (1) his demotion to Grade 27 and (2) the denial of his salary advances. Ex. A to
Ottaviano Decl. at pp.10-11.
Frantti also wrote to Jerry Boone, the President of the New York State Civil Service
Commission, the agency responsible for administering civil service exams, to complain about
the way his BPAP exam was going to be administered. Dep. Vol. 3 at 563:3-14.
On July 3, 2015, Frantti failed to show up for work until around 11:00 a.m. Amado
Decl. ¶ 11. On July 6, 2015, DCJS Supervisor Amado and DCJS Chief Analyst Rochester
met with plaintiff to remind him about DCJS's two-hour call-in policy. Amado Decl. ¶ 12.
Shortly afterward, DCJS Supervisor Amado furnished plaintiff with an "Individual
Performance Program" that contained a summary of work responsibilities and tasks that
DCJS Supervisor Amado expected plaintiff to perform in the Office of Finance. Id. ¶ 13.
Frantti returned a copy of this form to DCJS Supervisor Amado the next day, along
with a series of typed comments that indicated plaintiff's belief that his assigned tasks did
"not match the classified criteria of an Associate Budget Examiner." Ex. A to Amado Decl.,
Dkt. No. 42-43, p. 6. Among other things, plaintiff reiterated that he felt the BPAP portion of
his Grade 31 exam was being administered improperly and that it remained improper for
DCJS Supervisor Amado, a lower grade employee, to review him. Dep. Vol. 3 at
568:7-571:2, see also Dep. Vol. 1 at 78:8-22.
On July 14, 2015, an EHS physician evaluated Frantti and declared him fit to perform
the essential duties of his position. Ex. C to Orcutt Decl. at p. 36. On July 20, 2015, plaintiff
missed a full day of work even though he had e-mailed DCJS Supervisor Amado and
- 32 -
indicated he would be in by 10:00 a.m. that day. Amado Decl. ¶ 16. Plaintiff missed another
full day of work on July 27, 2015. Id. ¶ 18. Plaintiff took a partial day of unscheduled leave
on July 30, 2015. Id. ¶ 19. However, plaintiff took two more partial days of unscheduled
leave on August 5 and 7, 2015. Id. ¶¶ 20, 22.
On August 7, 2015, DCJS Supervisor Amado and DCJS Chief Analyst Rochester met
with Frantti after he showed up to work ninety minutes late without any advance
notice. Amado Decl. ¶ 23. At that meeting, they pointed out that plaintiff's excessive
absences made it difficult to assign him meaningful work and to manage important work
deadlines. Id. Plaintiff denies that this was the case. Frantti Aff. ¶¶ 90-91.
On August 17, 2015, Frantti took more unscheduled leave, arriving at work at 2:00
p.m. that afternoon. Amado Decl. ¶ 24. Plaintiff took a pre-approved absence the next day,
but took unscheduled, unapproved leave the day after that. Id. ¶¶ 25-26. This pattern
continued throughout August. Id. ¶¶ 27-33.
On August 31, 2015, DOB HR Officer Orcutt sent Frantti a letter directing him to
appear at another Section 75 hearing. Ex. C to Orcutt Decl. at p. 37. According to DOB HR
Officer Orcutt, this time the hearing was scheduled to address plaintiff's repeated violations
of DCJS's call-in policy in June 2015. Orcutt Decl. ¶ 57.
In the meantime, on September 1, 2015, Frantti heard back from the New York State
Civil Service Commission regarding his complaint about the fairness of the BPAP. Dep. Vol.
3 at 566:12-567:5. In that response, the State Civ il Service Commission concluded that
plaintiff would not be competitively disadvantaged by DCJS Supervisor Amado's participation
or by the fact that plaintiff remained assigned to DCJS. Id. at 566:19-567:2.
On September 2, 2015, a Performance Evaluation Appeals Board (the "Appeals
- 33 -
Board") heard Frantti's administrative appeal from his "below expectations" performance
evaluation. Labate Decl. ¶ 19. After taking testimony from plaintiff and DCJS Deputy
Adams, the Appeals Board recommended denying plaintiff's appeal and upholding the
"below expectations" performance evaluation. Id. Thereafter, DOB Budget Director Labate
adopted the Appeals Board's recommendation. Id. ¶ 20.
On September 9, 2015, Frantti received a counseling memo from DCJS Supervisor
Amado about his "excessive unscheduled absences." Dep. Vol. 3 at 635:3-23. According to
this memo, plaintiff had taken "fourteen instances of unscheduled leave" since July 2,
2015. Id. at 636:1-6. Plaintiff contends that the one-day medical note requirement was
reimposed on him as a result of this memo. Frantti Aff. ¶¶ 97-98. Plaintiff missed work the
next day. Amado Decl. ¶ 39.
On September 14, 2015, DCJS HR Director Davis, DOB HR Officer Orcutt, and
another HR official held the second Section 75 hearing. Orcutt Decl. ¶ 58. Plaintiff again
contends that he was "terrified" he would be terminated as a result of this hearing. Frantti
Aff. ¶ 79.
The parties resolved this second hearing by reaching a stipulation of settlement that
included a two-day unpaid suspension and another Letter of Reprimand in Frantti's personnel
file. Ex. C to Orcutt Decl. at pp. 45-47. Shortly thereafter, DOB HR Officer Orcutt sent
plaintiff a letter again warning him that he should stop violating DCJS's time and attendance
call-in policy. Id. at p. 48.
On September 17, 2015, Frantti submitted a second DHR complaint. Dep. Vol. 3 at
656:11-15; see also Ex. F to Ottaviano Decl., Dkt. No. 42-20. Plaintiff's second DHR
complaint alleged retaliation by the DOB, DCJS, DOB Budget Director Labate, DOB HR
- 34 -
Officer Orcutt, and DCJS HR Director Davis arising from his claim that the DCJS time and
attendance policies were being unfairly applied to him in the wake of the filing of his first DHR
complaint. Id. at pp.12-15.
Around this time, Frantti had submitted to DCJS HR Director Davis a note excusing a
group of "accumulated absences at the end of an extended absence," but claims they were
"refused" because "the excuses had not been submitted on a daily basis within 24 hours of
each day absent." Dep. Vol. 3 at 631:1-6; see also Frantti Aff. ¶ 99. Plaintiff contends that
his pay was docked as a result, but admits that it was later repaid. Frantti Aff. ¶ 99.
On October 31, 2015, Frantti sent an e-mail to Laurie Lucier, a DOB employee, asking
to explore the possibility of a work schedule that would permit plaintiff to start later in the
morning, since the mornings were the times when his stomach was "most
distressed." Frantti Aff. ¶ 102. Ms. Lucier responded to plaintiff and suggested that he
"explore this on the internet." Id.
On November 9, 2015, DCJS Supervisor Amado sent Frantti a "clarification" memo
explaining how the one-day note requirement applied to multiple-day absences. Ex. C to
Amado Decl., Dkt. No. 42-45. According to this memo, "the required documentation must be
submitted no later than close of business upon your first day back in the office." Id. Plaintiff
denies there was ever any "misunderstanding" and instead insists that this was "just another
device used by the Defendants designed to make [him] fail." Frantti Aff. ¶ 100.
In late September, through October and November, and into December of 2015,
Frantti continued to miss significant amounts of time at work. Orcutt Decl. ¶ 60; Amado
Decl. ¶¶ 39-60, 63-100. This pattern continued to worsen, with plaintiff missing work every
day from November 16, 2015 through December 22, 2015. Id. Plaintiff provided medical
- 35 -
documentation for some, but not all, of these absences. Id. ¶ 62. Plaintiff returned to work
on December 23, but the next day plaintiff had another unscheduled absence. Id. ¶ 60.
Eventually, after going through "every test that [his doctors] could come up with,"
Frantti sought out mental help. Dep. Vol. 1 at 216:12-21. First, plaintif f met with Joyce Gary,
a psychologist, through the State's Employee Assistance Program. Id. at 214:15-218:5.
After meeting with her "about ten times," she informed plaintiff that "she felt that what was
happening to [him] was psychologically related." Id. at 215:6-10, 217:13-14. However, she
was not licensed to prescribe plaintiff any psychotropic medicine. Id. at 215:9-10.
N. Frantti Takes More Leave
In December of 2015, Frantti applied for a second period of short-term disability
leave. Dep. Vol. 2 at 513:19-514:2. Plaintif f's leave was again approved by the State but his
pay was again denied by his insurer. Dep. Vol. 1 at 145:5-12; Dep. Vol. 2 at 514:15-18.
After beginning this second short-term leave of absence in January of 2016, plaintiff would
never return to work. Dep. Vol. 3 at 590:1-11; Orcutt Decl. ¶ 63.
On January 26 and February 22, 2016, following an investigation, the DHR issued two
determinations denying and dismissing Frantti's July 2, 2015 DHR complaint. Ex. C to
Ottaviano Decl., Dkt. No. 42-17 (January 26 notice); Ex. D to Ottaviano Decl., Dkt. No. 42-18
(February 22 notice).
Thereafter, the U.S. Equal Employment Opportunity Commission ("EEOC") sent to
Frantti a "dismissal and notice of rights," explaining that it had adopted the negative findings
of the DHR and indicating that plaintiff had ninety days in which to file suit. Ex. E to
Ottaviano Decl., Dkt. No. 42-19 (April 8 notice).
In March of 2016, still on leave from work and spurred on by his prior conversations
- 36 -
with psychologist Joyce Gary, Frantti began treating with Dr. Adrian Morris, a psychiatrist,
and someone licensed to prescribe psychotropic medication. Dep. Vol. 1 at 142:18-23.
Plaintiff started taking Prozac and Xanax under Dr. Morris's care. Id. at 145:20-22.
On March 16, 2016, following a further investigation, the DHR issued a determination
denying and dismissing Frantti's September 17 DHR complaint. Ex. I to Ottaviano Decl., Dkt.
No. 42-23; see also Pl.'s Vol. 3 at 657:6-8. Thereafter, the EEOC sent plaintiff a second
"dismissal and notice of rights." Ex. J to Ottaviano Decl., Dkt. No. 42-24 (November 4
notice).
On April 20, 2016, DOB HR Officer Orcutt sent Frantti a letter stating that his second
claim for short-term disability leave had been denied. Ex. O to Orcutt Decl., Dkt. No. 42-67.
This letter informed plaintiff that unless he was fit to return to work at that time, he should
resume submitting medical documentation "for each future day-to-day absence and notify
[his] supervisor within two hours" in accordance with DCJS call-in policy. Id. Plaintiff did not
comply with these requirements. Orcutt Decl. ¶ 66. However, plaintiff did send a letter
signed by Dr. Fogel that indicated he planned to appeal the denial of benefits. Id.
On April 26, 2016, DCJS HR Director Davis sent DOB HR Officer Orcutt a letter
recommending that Frantti's 2016 salary increase be denied on account of his continued
poor job performance. Ex. P to Orcutt Decl., Dkt. No. 42-68. In that letter, DCJS HR Director
Davis noted that plaintiff had missed "months' worth of time," which "precluded his
supervisors from giving him any substantial projects." Id. DOB HR Officer Orcutt forwarded
this recommendation to the Budget Director, who again approved it. Orcutt Decl. ¶ 67; see
also Dep. Vol. 2 at 448:1-8.
On May 24, 2016, DOB received a letter from Dr. Fogel that indicated Frantti was
- 37 -
"unable to work at this time" and that his status would be re-evaluated on June 17, 2016. Ex.
D to Orcutt Decl., Dkt. No. 42-56, p. 54. DOB accepted this as suf ficient documentation to
satisfy the DCJS time and attendance policy. Orcutt Decl. ¶ 68.
Dr. Fogel provided a second, substantially similar letter that indicated Frantti would be
unable to work until July 1, 2016. Ex. D to Orcutt Decl. p. 55. According to DOB HR Officer
Orcutt, plaintiff sent DOB a third letter from Dr. Fogel that indicated plaintiff could return to
work on July 11, 2016. Orcutt Decl. ¶ 69.
O. Frantti Resigns
However, on July 11, 2016, Frantti did not show up to work. Orcutt Decl. ¶ 70.
Instead, plaintiff sent a letter to DOB HR Officer Orcutt informing her of his resignation. Ex.
Q to Orcutt Decl., Dkt. No. 42-69; see also Pl.'s Vol. 1, 144:18-20. According to this letter,
plaintiff enjoyed working at DOB but found his placement at DCJS caused a "documented
negative impact on [his] physical and mental health." Id.
All told, Frantti was denied his yearly performance advance and general salary
increases in 2014, 2015, and 2016. Pl.'s Vol. 2 at 448:1-8. During this same three-year
period, plaintiff had missed 1,562.5 hours out of approximately 1,950 working hours (in
2014), 1,434.5 hours out of approximately 2,025 working hours (in 2015), and 525 hours out
of 525 working hours (in 2016). Orcutt Decl. ¶ 72.
Stated differently, Frantti missed 173 full days and 75 partial ones out of a total of 251
working days in 2014. Adams Decl. ¶ 84. From January 1, 2015, through June 9, 2015,
plaintiff missed 100% of work because of his first leave of absence. Id. ¶ 85.
After Frantti returned to work in mid-2015, he missed a few more days before being
reassigned to the OPCA's Office of Finance. Adams Decl. ¶ 86. Thereafter, in the second
- 38 -
half of 2015, plaintiff missed 53 full days of work and took 17 partial days off before starting
his second leave of absence. Amado Decl. ¶ 130.
From January 1, 2016 through his resignation on July 11, 2016, Frantti missed every
single day of work. Amado Decl. ¶ 129. Expressed differently, plaintiff missed work about
75% of the time he was assigned to the Office of Finance. Id. ¶ 130.
Recently, Frantti's gastrointestinal symptoms have returned, seemingly as a result of
the renewed psychological stress caused by this ongoing lawsuit. Pl.'s Vol. 1 at
146:7-148. By all accounts, then, plaintiff's persistent, recurrent physical symptoms turned
out to be the result of an undiagnosed psychological condition. See Frantti Aff. ¶ 6 n.2.
III. LEGAL STANDARD
The entry of summary judgment is warranted when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)).
A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit
under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a
material fact is genuinely in dispute "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
The movant bears the initial burden of demonstrating that there is no genuine issue of
material fact to be decided with respect to any essential element of the claim. See, e.g.,
Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). If this initial burden is met, the
opposing party must show, through affidavits or otherwise, that there is a material issue of
- 39 -
fact for trial. Anderson, 477 U.S. at 250.
Summary judgment is not appropriate if, after resolving all ambiguities and drawing all
factual inferences in favor of the nonmoving party, a review of the record reveals sufficient
evidence for a rational trier of fact to find in the non-movant’s favor. See, e.g., Treglia v.
Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
IV. DISCUSSION
Defendants argue that summary judgment is warranted on Frantti's remaining claims
because the record evidence demonstrates that "plaintiff was a floundering employee whose
job performance became increasingly unsatisfactory over time." Defs.' Mem., Dkt. No. 42-85,
3. According to defendants, plaintiff's mysterious physical symptoms were so frequently
debilitating that "no reasonable accommodations [ ] would have allowed plaintiff to perform
the essential aspects of his job." Id. at 3-4.
Further, defendants assert that Frantti was "uniquely difficult to manage as an
employee, and that he knowingly, repeatedly, and flagrantly violated relevant time and
attendance policies." Defs.' Mem. at 4. Notably, defendants point out that although plaintiff's
actual condition turned out to be psychological and likely stress-related in nature, he resigned
from State employment before ever informing defendants of that crucial distinction. Id.
Frantti responds that his own inability to determine the root cause of his
gastrointestinal symptoms is not the sine qua non of a viable disability claim. See Pl.'s
Opp'n, Dkt. No. 44-22, 7. Plaintiff concedes that his impairment "made him unable to show
up for work with sufficient dependability to be given assignments consistent with his
employment grade" but nevertheless insists that defendants should have let him try working
from home anyway. Id. at 10-11.
- 40 -
Defendants reply by reiterating that they were never on notice of the underlying,
psychological basis of Frantti's physical symptoms. Defs.' Reply, Dkt. No. 45, 5. According
to defendants, what counts as a "reasonable accommodation" for an unknown, debilitating
physical condition is totally different than a "reasonable accommodation" for a condition
caused by environmental work stressors. Id.
In defendants' view, "there was no reason to believe that a transfer to another desk
job in another office or agency, or change of supervisors, or different management methods,
or less psychologically stressful assignments, etc. would have been an effective, reasonable
accommodation for an apparently untreatable physical illness/disease that caused disabling
nausea, diarrhea, pain and severe, debilitating fatigue" even though those kind of
accommodations might well have been perfectly appropriate for a known psychiatric
condition. Defs.' Reply at 5-6.
A. Local Rule 7.1(a)(3)
Before getting to the merits of these arguments, though, an important procedural issue
must be addressed. As noted supra, Frantti, although represented by counsel in this action,
failed to properly oppose the statement of undisputed material facts submitted by defendants
in accordance with Local Rule 7.1(a)(3). See generally Dkt. No. 44 (plaintiff's filings in
opposition); see also Defs.' Reply at 3 (noting the procedural deficiency).
"The responding Statement of Material Facts is not a mere formality." Cross v. State
Farm Ins. Co., 926 F. Supp. 2d 436, 441 (N.D.N.Y. 2013) (McAvoy, J.). To the contrary, this
and other local rules governing summary judgment are "essential tools" intended to relieve
the district court "of the onerous task of 'hunt[ing] through voluminous records without
guidance from the parties.'" Carter v. Broome County, 394 F. Supp. 3d 228, 238 (N.D.N.Y.
- 41 -
2019) (quoting N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs.,
Inc., 426 F.3d 640, 649 (2d Cir. 2005)).
As relevant here, Local Rule 7.1(a)(3) imposes straightforward requirements on a
party seeking to oppose summary judgment. It directs a non-movant to: (1) "file a response
to the Statement of Material Facts" that (2) "mirror(s) the movant's Statement of Material
Facts" by (3) "admitting and/or denying each of the movant's assertions in matching
numbered paragraphs" with (4) "specific citation(s) to the record where the factual issue
arises." N.D.N.Y.L.R. 7.1(a)(3). It also warns—in no uncertain terms—that "[t]he Court shall
deem admitted any properly supported facts set forth in the Statement of Material Facts that
the opposing party does not specifically controvert." Id. (emphasis omitted).
Frantti took a different tack. Instead of following this local rule and engaging with the
voluminous materials produced in discovery in this action (such as his 800+ pages of
deposition testimony, see Dep. Vols. 1-3, Dkt. Nos. 42-4 through 42-6), plaintiff's opposition
relies almost exclusively on a separate affidavit sworn to on April 19, 2019, just a few days
before the opposition to summary judgment came due on April 23. See Frantti Aff., Dkt. No.
44-1, ¶¶ 1-111.
Of course, it is not improper for a non-movant to submit an affidavit as part of the
opposition to summary judgment, or to rely on an affidavit in drafting a proper, responsive
statement of material facts in accordance with the local rules. 6 But Frantti's affidavit has
6
Provided, of course, that the affidavit is not crafted solely for the purpose of manufacturing issues
of fact for trial. See, e.g., Brandon v. Kinter, 938 F.3d 21, 33 n.9 (2d Cir. 2019) (observing general rule that "a
party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion
that, by omission or addition, contradicts the affiant's previous deposition testimony" (citation omitted);
Palazza ex rel. Delmage v. Corio, 232 F.3d 38, 43-44 (2d Cir. 2000) (explaining that any such concern can be
alleviated with corroborating evidence).
- 42 -
improperly made certain assertions on mere "information and belief." See, e.g., Frantti
Aff. ¶¶ 1, 99. And even crediting the ones properly made on his own personal knowledge,
plaintiff's haphazard approach to opposing defendants' summary judgment motion leaves
many important facts uncontested. Compare Frantti Aff., with Defs.' Rule 7.1 Statement, Dkt.
No. 42-1 ("Rule 7.1 Statement").
This affidavit also challenges a smattering of assertions made in certain declarations
submitted by defendants in support of their properly submitted statement of material
facts. See, e.g., Frantti Aff. ¶ 91 (faulting DCJS Supervisor Amado's declaration for lacking a
sufficient "level of detail"); id. ¶¶ 10, 107 (challenging the sufficiency of the individual
defendants' responses to plaintiff's counsel's questioning about a hypothetical
accommodation). However, "simply challenging the credibility of a declarant" is not the
proper way for a non-movant to go about creating a genuine issue of material fact. Estate of
D.B. ex rel. Briggs v. Thousand Islands Cent. Sch. Dist., 327 F. Supp. 3d 477, 490 n.12
(N.D.N.Y. 2018) (Suddaby, J.) (collecting cases).
In addition this affidavit, Frantti submitted certain exhibits, including some time
records, Exs. 44-2 through 44-6 and Ex. 44-20, and a few snippets of documentary
evidence: a doctor's note post-dating his resignation from State employment, Ex. 44-7, a
copy of his resume and some other materials associated with his promotion(s) and move
over to DCJS, Exs. 44-8 through 44-12 and Exs. 44-14 and 15, a few e-mail exchanges, Ex.
44-13 and Exs. 44-17 through 20, and copy of some of DCJS's time and attendance policies,
Ex. 44-16. But a review of these various exhibits reveal this material is mostly duplicative of
documentation already present in defendants' properly supported summary judgment filing.
- 43 -
In short, Frantti's opposition adds little to the analysis in this case. And because the
relevant local rule on this precise issue could not be more clear, defendants' statement of
material facts "will be accepted as true to the extent that the facts are supported by evidence
in the record." Aktas v. JMC Dev. Co., Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012)
(D'Agostino, J.); see also Davis v. Cumberland Farms, Inc., 2013 WL 375477, at *4
(N.D.N.Y. Jan. 29, 2013) (Scullin, J.) (deeming admitted the properly supported factual
assertions in movant's Local Rule 7.1(a)(3) statement where non-movant's submission "did
not specifically controvert" them).
B. Disability Discrimination
Under Title I of the ADA, "[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges
of employment." Castro v. City of N.Y., 24 F. Supp. 3d 250, 259 (E.D.N.Y. 2014) (quoting 42
U.S.C. § 12112(a)). "Like the ADA, the Rehabilitation Act prohibits disability-based
discrimination, but it applies specifically to government agencies and other recipients of
federal funds." Id. at 260 (citation and internal quotation marks omitted).
Absent direct evidence7, claims for employment discrimination under the ADA and the
Rehabilitation Act are both analyzed using the burden-shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See, e.g.,
Kho v. N.Y. & Presbyterian Hosp., 344 F. Supp. 3d 705, 717 (S.D.N.Y. 2018); Atencio v. U.S.
7
But see McMillan v. City of N.Y., 711 F.3d 120, 129 (2d Cir. 2013) ("When the parties agree that
the employer complains of conduct that is the direct result of the employee's disability, however, there is no
need to evaluated whether the employer's adverse employment action made in response to that conduct is
pretextual.").
- 44 -
Postal Serv., 198 F. Supp. 3d 340, 355 (S.D.N.Y. 2016).
As relevant here, "[t]he ADA and the Rehabilitation Act require employers to make
'reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual.'" Cadoret v. Sikorsky Aircraft Corp., 323 F. Supp. 3d 319, 324 (D. Conn.
2018) (quoting McBride v. BIC Consumer Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009)); see
also Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008) (noting that "disability
discrimination" includes a failure to accommodate a plaintiff's known limitations); Hernandez
v. Int'l Shoppes, LLC, 100 F. Supp. 3d 232, 251 (E.D.N.Y. 2015) (discussing ADA
amendments, the limitations of "regarded as" claims, and noting that "[e]mployers do not
need to reasonably accommodate individuals who do not have an actual disability").
"To establish a prima facie case of discrimination based on an employer's failure to
accommodate a disability, under either the ADA or the Rehabilitation Act, a plaintif f must
demonstrate that '(1) [the plaintiff] is a person with a disability under the meaning of [the
statute in question]; (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.'" Natofsky v. City
of N.Y., 921 F.3d 337, 352 (2d Cir. 2019) (quoting McBride, 583 F.3d at 97)).
A "reasonable accommodation" is a modification "to the work environment, or to the
manner or circumstances under which the position held or desired is customarily performed,
that enable[s] an individual with a disability who is qualified to perform the functions of that
position." Atencio, 198 F. Supp. 3d at 356 (quoting 29 C.F.R. § 1630.2(o)(1)(ii)).
"A reasonable accommodation can be achieved in a variety of ways, see 29
C.F.R. § 1630.2(o)(2), and 'employers are not required to provide a perfect accommodation
- 45 -
or the very accommodation most strongly preferred by the employee,' as long as the chosen
accommodation is effective." Atencio, 198 F. Supp. 3d at 356 (quoting Noll v. I.B.M. Corp.,
787 F.3d 89, 95 (2d Cir. 2015)).
Importantly, however, "'[a] reasonable accommodation can never involve the
elimination of an essential function of a job,' Shannon v. N.Y. City Transit Auth., 332 F.3d 95,
100 (2d Cir. 2003) or result in a promotion to a position for which the employee is unqualified,
McBride, 583 F.3d at 98." Atencio, 198 F. Supp. 3d at 356. Nor is an employer required to
create a new position as an accommodation." Id. (citing Graves v. Finch Pruyn & Co., 457
F.3d 181, 187 (2d Cir. 2006)).
"If a plaintiff suggests plausible accommodations, the burden of proof shifts to the
defendant to demonstrate that such accommodations would present undue hardships and
would therefore be unreasonable." Hernandez, 100 F. Supp. 3d at 262 (quoting McMillan v.
City of N.Y., 711 F.3d 120, 128 (2d Cir. 2013)). An "undue hardship" is "an action requiring
significant difficulty or expense." Id. (quoting 42 U.S.C. § 12111(10(A)).
Upon review, Frantti's ADA and Rehabilitation Act claims fail under this body of
governing law. Even resolving the disputed facts in plaintiff's favor and viewing the record in
the light most favorable to him, no reasonable jury could find in plaintiff's favor on his "failure
to accommodate" theory of disability discrimination.
Indeed, Frantti's claim fails at virtually every step of the relevant analysis. First off,
"[t]he plaintiff bears the burden of production and persuasion on the issue of whether he is
otherwise qualified to perform the essential functions of a job." Pesce v. N.Y. City Police
Dep't, 159 F. Supp. 3d 448, 456-57 (S.D.N.Y. 2016). The "essential functions" of a position
"means the fundamental job duties of the employment position," but does not include "the
- 46 -
marginal functions of the position." Atencio, 198 F. Supp. 3d at 356 (citation omitted).
"In determining whether a particular function is essential, courts consider, among
other things, '[t]he employer's judgment as to which functions are essential,' '[w]ritten job
descriptions,' and '[t]he amount of time spent on the job performing the function.'" Atencio,
198 F. Supp. 3d at 356 (quoting 29 C.F.R. § 1630.2(n)(3)).
"A court must give considerable deference to an employer's judgment regarding what
functions are essential for service in a particular position." Atencio, 198 F. Supp. 3d at
356 (quoting D'Amico v. City of N.Y., 132 F.3d 145, 151 (2d Cir. 1998)). "But ultimately, the
question whether a task constitutes an essential function depends on the totality of the
circumstances." Id. (quoting Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 120
(2d Cir. 2004)).
Defendants' properly supported submissions establish that Frantti's various job
assignments at DCJS required him to perform "involved analysis" on complex, collaborative
projects that unfolded over long periods of time. Rule 7.1 Statement ¶¶ 52-54; see also
Adams Decl. ¶ 87. Plaintiff's job assignments also required him to be "in the office and
available, on a consistent basis, for assignments (many of which have relatively tight
deadlines)," and to answer questions and communicate with other DCJS staff and outside
agencies. Adams Decl. ¶ 87.
Nowhere in his affidavit or supporting materials does Frantti claim that one or more of
these functions, including the need to be physically present in the office on a sustained and
consistent basis to collaborate with other employees on various projects of an occasionally
time-sensitive nature, were not essential to his assignment at DCJS. Pesce, 159 F. Supp. 3d
at 456-57. Rather, plaintiff just states that he should have been allowed to work remotely
- 47 -
from home, and supports this claim by noting that his father, who worked for a different State
agency fifteen years ago, worked "from home via computer" after an injury.8 Frantti
Aff. ¶¶ 10, 107.
Frantti does insist that, on one occasion in October of 2015, he sent an e-mail to an
HR official asking to explore the possibility of a modified work schedule and in response was
directed to the relevant policies located on the internet. Frantti Af f. ¶ 102. It is true that the
disability statutes contemplate that this kind of accommodation might be a possibility in
appropriate circumstances. See, e.g., Doak v. Johnson, 19 F. Supp. 3d 259, 275 (D.D.C.
2014) (citing 42 U.S.C. § 12111(9)(B)); see also McMillan, 711 F.3d at 126 (discussing
possibility that arriving later in the day might be a reasonable accommodation).
But this is insufficient to defeat summary judgment in this case. Importantly, Frantti
failed to controvert defendants' factual assertion that plaintiff's regular, physical presence in
the office during regular working hours was an "essential function" of his job assignment at
DCJS. And both before and after he made this request, plaintiff's presence at work remained
sporadic and unpredictable. Adams Decl. ¶ 87. As a result, there was no indication that this
particular accommodation was "an achievable reality" at the time. Doak, 19 F. Supp. 3d at
277 (concluding same where plaintiff sought modified work schedule against background of
repeated, unpredictable absences).
Second and perhaps even more importantly, Frantti has failed to controvert
defendants' factual assertion that the combined effect of plaintiff's ongoing gastrointestinal
8
Even then, though, Frantti nowhere avers that he actually asked to work from home. Cf. Kho, 344
F. Supp. 3d at 721 ("It is well-settled that an employer cannot be liable for failing to provide an
accommodation that was never requested."). Nor does he appear to claim that he actually asked for some
kind of related accommodation that might facilitate working at his work station or desk. See, e.g., Dep. Vol. 2
at 268:21-269:1 (conceding he never requested a standing desk).
- 48 -
symptoms completely disabled him from working. Defs.' Rule 7.1 Statement ¶¶ 24, 26
(emphasis added).
After all, defendants agree with Frantti's assertion that he made every effort to be
present at work whenever he was not actively symptomatic. See, e.g., id. ¶¶ 34, 36. In other
words, the many, many instances in which plaintiff missed full or partial days of work were
due to the extreme discomfort caused by his gastrointestinal symptoms. Rule 7.1
Statement ¶¶ 27-28, 35.
During these periods Frantti "was generally lying in bed" and felt it was "difficult if not
impossible to sit at a desk" or do office work of the type expected of him. Rule 7.1
Statement ¶¶ 27-28, 35. Plaintiff acknowledges in his own affidavit that he would need to
take breaks, frequently run to the bathroom, and "sit, stand or recline as needed in ways not
otherwise available (or appropriate) in an office setting" when his symptoms occurred. Frantti
Aff. ¶ 9.
Indeed, Frantti concedes in his own opposition memorandum that his ongoing physical
impairment, whatever its true underlying nature, "made him unable to show up for work with
sufficient dependability to be given assignments consistent with his employment grade." Pl.'s
Opp'n at 10-11. It is difficult to see how a plaintiff who cannot complete assignments
"consistent with his employment grade" is qualified to perform the "essential functions" of his
work assignment. Cf. Hernandez, 100 F. Supp. 3d at 261 ("While a reasonable
accommodation may include adjustments such as the modification of physical facilities, work
schedules or equipment or job restructuring, reasonable accommodation does not mean the
elimination of any of the position's essential functions.").
And when Frantti actually discovered the psychological underpinnings of his physical
- 49 -
gastrointestinal symptoms, he voluntarily resigned from State employment rather than
(1) return to work; (2) let his supervisors know he had discovered the true cause of his
symptoms; and/or (3) try to pursue one or more workplace accommodations that might
alleviate some or all of the apparent work-related stress or anxiety. Defs.' Rule 7.1
Statement ¶ 42.
Whether it is transmitted to the employer formally or informally, a defendant cannot be
said to have failed to provide a reasonable accommodation if the plaintiff "fails to provide the
information necessary to assess the request for an accommodation" in the first place. Khalil
v. Pratt Inst., 2019 WL 1052195, at *7 (E.D.N.Y. Feb. 13, 2019).
Thus, the Court agrees with defendants that "there was no reason to believe that a
transfer to another desk job in another office or agency, or change of supervisors, or different
management methods, or less psychologically stressful assignments, etc. would have been
an effective, reasonable accommodation for an apparently untreatable physical
illness/disease that caused disabling nausea, diarrhea, pain and severe, debilitating fatigue"
even though those kind of accommodations might well have been perfectly appropriate and
reasonable for an employee suffering a known psychiatric condition. Defs.' Reply at 5-6.
Frantti's repeated suggestion that he should have been somehow exempted from the
DCJS time and attendance policies fares no better because it would not have been a
"reasonable accommodation" under the circumstances of this case. Plaintiff certainly found
aspects of the call-in policy to be onerous, inefficient, and unfairly burdensome to him and his
doctor.
But there is no indication that Frantti's alleged disability actually rendered him
incapable of complying with the policy. See, e.g., Brown v. The Pension Boards, 488 F.
- 50 -
Supp. 2d 395, 406 (S.D.N.Y. 2007) ("The record indicates that [plaintiff] was capable of
complying with the call-in policy despite his alleged disability . . . . "); Jackson v. Nor Loch
Manor Healthcare Facility, 297 F. Supp. 2d 633, 636 (W .D.N.Y. 2004) ("Certainly, an
employer is entitled to discharge an employee who fails to follow company rules and fails to
appear for work without notification, even if the absences are attributable to a medical
problem.").
To be clear, "[p]hysical presence at or by a specific time is not, as a matter of law, an
essential function of all employment." McMillan, 711 F.3d at 126. However, the "reasonable
accommodation" requirement found in the disability statutes does not obligate an employer to
"develop a schedule whereby an employee works only when [his] illness permits." Rinaldi v.
Quality King Distribs., Inc., 29 F. Supp. 3d 218, 228 (E.D.N.Y. 2014).
Indeed, courts elsewhere have repeatedly concluded that "an erratic and
unpredictable accommodation, such as an open-ended 'work whenever you want schedule'
is unreasonable as a matter of law." Doak, 19 F. Supp. 3d at 276; see also Fisher v.
Vizioncore, Inc., 429 F. App'x 616, 616 (7th Cir. 2011) (non-precedential disposition) (noting
that "an open-ended schedule with the privilege to miss workdays frequently and without
notice" is unreasonable as a matter of law).
To that end, courts in this Circuit "have specifically noted that '[t]he ADA does not
require employers to tolerate chronic absenteeism even when attendance problems are
caused by an employee's disability.'" Lewis v. N.Y. City Police Dep't, 908 F. Supp. 2d 313,
327 (E.D.N.Y. 2012) (citation omitted); see also Rinaldi, 29 F. Supp. 3d at 227 ("[Plaintiff] has
not demonstrated that she could perform an 'essential function' of her employment, namely
'showing up for work.'"); Pierce v. Highland Falls-Fort Montgomery Sch. Dist., 2011 WL
- 51 -
4526520, at *5 (S.D.N.Y. Sept. 28, 2011) ("Attendance is an essential function of
employment.").
Frantti repeatedly suggests that defendants treated him unfairly under the DCJS time
and attendance policies, placed him under "more restrictive requirements" than other
employees in an effort to force him to resign, and characterizes the one-day note policy as a
"punishment." Frantti Aff. ¶¶ 106, 109; see also Dep. Vol. 3 at 653:4-654:19.
But Frantti acknowledges that he has no evidence to support these conclusory
allegations. Plaintiff understood that DOB time and attendance policies were different than
DCJS policies on these issues, Dep. Vol. 3 at 732:4-736:20, and he f ailed to contest
defendants' assertion that DOB employees "on loan status" to DCJS were required to follow
DCJS policies while on loan to the sister agency, Rule 7.1 Statement ¶ 56.
Frantti also concedes that the DCJS policies at issue, including the one-day note
requirement, applied to all DCJS employees and admits that he is unaware of any other
DCJS employees who were treated differently or more favorably under those policies. Dep.
Vol. 3 at 696:11-697:4, 701:14-21, 737:17-738:6; see also Rule 7.1 Statement ¶¶ 57-74.
Simply put, plaintiff can point to no evidence in support of an accusation that co-workers with
similar attendance problems were treated more favorably under the policies.
In sum, given the "[g]iven the sporadic and unpredictable nature of [Frantti's]
absences," it was "impossible for [the State] to know from one day to the next," whether
plaintiff would report to work. Rinaldi, 29 F. Supp. 3d at 228 (citation omitted). The State
was not obligated to provide plaintiff an ongoing exemption of indefinite length from the time
and attendance policies that were applicable to his fellow employees. Cf. Jarrell v. Hosp. for
Special Care, 626 F. App'x 308, 311 (2d Cir. 2015) (summary order). Accordingly, no
- 52 -
reasonable juror could conclude that defendants violated the ADA or the Rehabilitation Act
by failing to accommodate plaintiff's disability.
C. Retaliation
"It is unlawful under the ADA (and consequently the Rehabilitation Act) for an
employer to 'coerce, intimidate, threaten, or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or enjoyed . . . any right granted or
protected by this chapter." Atencio, 198 F. Supp. 3d at 361. "Claims for retaliation [under
the ADA and the Rehabilitation Act] are analyzed under the same burden-shifting framework
established for Title VII cases." Id. (quoting Treglia v. Town of Manlius, 313 F.3d 713, 719
(2d Cir. 2002)).
"[T]he elements of a retaliation claim under ether [the Rehabilitation Act] or the ADA
are (i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff
was involved in protected activity; (iii) an adverse decision or course of action was taken
against plaintiff; and (iv) a causal connection exists between the protected activity and the
adverse action." Natofsky, 921 F.3d at 353 (quoting Weixel v. Bd. of Educ. of City of N.Y.,
287 F.3d 138, 148 (2d Cir. 2002)).
"A causal connection in retaliation claims can be shown either '(1) indirectly, by
showing that the protected activity was followed closely by discriminatory treatment, or
through other circumstantial evidence such as disparate treatment of fellow employees who
engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant.'" Natofsky, 921 F.3d at 353 (quoting Littlejohn v. City of
N.Y., 795 F.3d 297, 319 (2d Cir. 2015)).
"Once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the
- 53 -
defendant to articulate a legitimate, non-retaliatory reason for the challenged employment
decision. If a defendant meets this burden, 'the plaintiff must point to evidence that would be
sufficient to permit a rational factfinder to conclude that the employer's explanation is merely
a pretext for impermissible retaliation.'" Atencio, 198 F. Supp. 3d at 361-62 (quoting Treglia,
313 F.3d at 721).
Notably, certain aspects of retaliation claims are analyzed differently than claims for
discrimination. First, "a plaintiff pursuing a retaliation claim need not prove that he or she
was actually 'disabled' within the meaning of the ADA." Sherman v. Cty. of Suffolk, 71 F.
Supp. 3d 332, 352 (E.D.N.Y. 2014).
Second, the concept of what constitutes an "adverse employment action" sweeps
more broadly in the retaliation context. See Atencio, 198 F. Supp. 3d at 362 ("In the context
of a retaliation claim, an adverse employment action is any action that could well dissuade a
reasonable worker from making or supporting a charge of discrimination." (citation and
internal quotation marks omitted)).
Third, a plaintiff's complaint can be formal or informal, and in fact the underlying
conduct about which the plaintiff complains need not actually be unlawful so long as plaintiff
possessed a good faith, reasonable belief that the challenged action violated the law. See,
e.g., Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 439 (E.D.N.Y.
2015).
Even in light of these relaxed standards, Frantti cannot establish a viable retaliation
claim on this factual record. At the outset, plaintiff's opposition memorandum does not make
an explicit argument against the dismissal of his retaliation claims and they can therefore be
deemed abandoned. See, e.g., Taylor v. City of N.Y., 269 F. Supp. 2d 68, 75 (E.D.N.Y.
- 54 -
2003) ("Federal courts may deem a claim abandoned when a party moves for summary
judgment on one ground and the party opposing summary judgment fails to address the
argument in any way.").
Even assuming otherwise, neither the criticism of Frantti's work performance (reflected
in the lackluster employee evaluations) nor the ongoing "excessive scrutiny" applied by his
supervisors (in continuing to apply the DCJS time and attendance policies against him)
constitute a sufficient "adverse action" in the context of a disability retaliation claim. See,
e.g., Volpe v. N.Y. City Dep't of Educ., 195 F. Supp. 3d 582, 597 (S.D.N.Y. 2016); see also
Natofsky, 921 F.3d at 353-54 ("[A]ppealing a negative performance review is not a protected
activity that can give rise to a retaliation claim.").
And the mere fact that DCJS continued to treat Frantti in a consistent way before and
after he made complaints, e.g., the May 2015 letter to Budget Director Labate or his
subsequent DHR filings, is insufficient to conclude otherwise. Cf. Porter v. Potter, 366 F.
App'x 195, 197 (2d Cir. 2010) (summary order) (holding in Title VII retaliation context that
"[a]dverse employment actions that are part of an 'extensive period of progressive discipline'
that begins prior to any protected activity on the plaintiff's part cannot give rise to an
inference of retaliation").
The same is true of defendants' decision to withhold Frantti's yearly salary
increases. "[A] continuous attendance issue is a legitimate reason for withholding an
employment benefit." Hannah P. v. Coats, 916 F.3d 327, 343 (4th Cir. 2019).
As other courts have repeatedly noted, anti-discrimination statutes, like the ADA and
the Rehabilitation Act, "do[ ] not require an employer to simply ignore an employee's blatant
and persistent misconduct, even where that behavior is potentially tied to a medical
- 55 -
condition." Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 305 (4th Cir. 2016);
see also Doak v. Johnson, 798 F.3d 1096, 1107 (D.C. Cir. 2015) (rejecting plaintiff's claim of
pretext where defendant asserted termination based on "her inability to maintain a regular
schedule and presence in the workplace, and her frequent and unpredictable absences
without leave"). Accordingly, summary judgment will be granted on this claim.
D. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that no State
shall "deny to any persons within its jurisdiction the equal protection of the laws." U.S. Const.
amend. XIV, § 1. This constitutional provision is "essentially a direction that all persons
similarly situated be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.
432, 439 (1985).
"There are a number of common methods for pleading an equal protection
claim." Kisembo v. N.Y.S. Office of Children & Family Servs., 285 F. Supp. 3d 509, 523
(N.D.N.Y. 2018). The one relevant in this case is a so-called "class of one," where a plaintiff
contends the defendant singled him out for mistreatment compared to other, similarly
situated individuals. See, e.g., Ruggiero v. City of Cortland, 2018 WL 5983505, at *15
(N.D.N.Y. Nov. 14, 2018) (discussing the mechanics of various Equal Protection theories).
Again, though, Frantti abandoned this claim when he failed to oppose defendants'
arguments in support of its dismissal. See, e.g., Taylor, 269 F. Supp. 2d at 75. Even
assuming otherwise, this kind of claim is not cognizable in the public employment
context. See, e.g., Chick v. Cty. of Suffolk, 546 F. App'x 58, 60 (2d Cir. 2013) (summary
order) (affirming dismissal of § 1983 claim where "district court correctly determined that
disability is not a suspect classification under the Equal Protection Clause, and that a class of
- 56 -
one does not exist in the public employment context"); Dotson v. City of Syracuse, 2019 WL
2009076, at *11 (N.D.N.Y. May 7, 2019) (D'Agostino, J.) ("Indeed, the courts have uniformly
held that disability discrimination claims cannot proceed under Section 1983 because there
are specific statutes that provide for such relief."). Accordingly, summary judgment will be
granted on this claim.
V. CONCLUSION
The record demonstrates that Frantti enjoyed a great deal of success as a State
employee at DOB and, for a time, at DCJS. However, the record also confirms that plaintiff
consistently failed to follow DCJS time and attendance policies even as his supervisors tried
to let him work through his mysterious gastrointestinal illness. In light of defendants' properly
supported summary judgment motion and plaintiff's deficient response in opposition, no
reasonable juror could find in plaintiff's favor on his remaining claims.
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED; and
2. Frantti's amended complaint is DISMISSED.
The Clerk of the Court is directed to enter a judgment accordingly and close the file.
IT IS SO ORDERED.
Dated: October 29, 2019
Utica, New York.
- 57 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?