Purse v. Mount Vernon City School District

Filing 42

OPINION AND ORDER: For the foregoing reasons, the Court grants Defendant's Motion for Summary Judgment. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 32), enter judgment for Defendant, and close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/9/2020) (jca) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

BRUCE PURSE,
Plaintiff,
No. 17-CV-8565 (KMK)
v.
OPINION & ORDER
MOUNT VERNON CITY SCHOOL
DISTRICT,
Defendant.

Appearances:
Robert S. Powers, Esq.
Law Office of Robert S. Powers
North Babylon, NY
Counsel for Plaintiff
Gerald S. Smith, Jr., Esq.
Joshua M. Goldstein, Esq.
Silverman and Associates
White Plains, NY
Counsel for Defendant
KENNETH M. KARAS, United States District Judge:
Plaintiff Bruce Purse (“Plaintiff”) brings this Action, pursuant to the Americans with
Disabilities Act (“ADA”), against Mount Vernon City School District (“Defendant,” or the
“District”). (See Compl. (Dkt. No. 1).) Plaintiff claims that Defendant violated his rights under
the ADA when it failed to provide him with a reasonable accommodation and failed to engage in
an interactive process, and when it altered the terms and conditions of his employment and
forced him to resign on the basis of his disability. (Id. ¶¶ 28–33.)

Before the Court is a Motion for Summary Judgment (the “Motion”) submitted by
Defendant. (See Def.’s Not. of Mot. (“Not. of Mot.”) (Dkt. No. 32).) For the reasons explained
herein, the Motion is granted.
I. Background
A. Factual Background
The following facts are taken from Defendant’s statement pursuant to Local Civil Rule
56.1, (Def.’s Local Rule 56.1 Statement (“Def.’s 56.1”) (Dkt. No. 34)), Plaintiff’s response to
that statement, (Pl.’s Resp. to Def.’s 56.1 (“Pl.’s 56.1”) (Dkt. No. 39)), and the admissible
evidence submitted by the Parties. 1 The Court recounts only those facts necessary for
consideration of the instant Motion.
1. Plaintiff’s Background
Effective September 1, 2007, Plaintiff was hired as a probationary music teacher in the
District. (Def.’s 56.1 ¶ 1 (citing Decl. of Gerald S. Smith, Esq. (“Smith Decl.”) Exs. C (“Aug. 3,
2007 Dunn Letter”); E (“Pl.’s Dep. Tr.”), at 5–7 (Dkt. Nos. 35, 35-3, 35-5)).) Plaintiff was
assigned to Thornton High School (“Thornton”), but also taught at Pennington Elementary

1

Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise
statement, in numbered paragraphs, of the material facts as to which the moving party contends
there is no genuine issue to be tried.” Local Civ. R. 56.1(a). The nonmoving party must then
submit “a correspondingly numbered paragraph responding to each numbered paragraph in the
statement of the moving party, and if necessary, additional paragraphs containing a separate,
short[,] and concise statement of additional material facts as to which it is contended that there
exists a genuine issue to be tried.” Id. at 56.1(b). “If the opposing party . . . fails to controvert a
fact set forth in the movant’s Rule 56.1 statement, that fact will be deemed admitted pursuant to
the local rule.” Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (citation and quotation
marks omitted); see also T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same).
Where possible, the Court relies on the facts as presented in the Parties’ statements of fact.
However, direct citations to the record are used where the Parties’ statements of fact do not
include relevant facts or do not accurately characterize the record.
2

School (“Pennington”) for about a year. (Id. ¶ 3 (citing Pl.’s Dep. Tr. 6); Pl.’s Dep. Tr. 6.) On
December 2, 2009, Plaintiff was appointed to a full-time position as a music teacher at Thornton.
(Def.’s 56.1 ¶ 2 (citing Smith Decl. Ex. D (“Dec. 3, 2009 Jackson Letter”) (Dkt. No. 35-4).)
According to Plaintiff, he had to pass a physical examination to teach in the District and was “not
sick at all” before he began working there. (Pl.’s Dep. Tr. 29–30.)
On average, Plaintiff worked from 7:50 a.m. to 5:00 or 6:00 p.m. However, he
occasionally worked as late as 8:00 or 9:00 p.m. (Def.’s 56.1 ¶ 6 (citing Pl.’s Dep. Tr. 13–14).)
In his position, Plaintiff often played instruments to demonstrate musical concepts for his
students, including after school. (Id. ¶ 4 (citing Pl.’s Dep. Tr. 9, 11).) In Plaintiff’s opinion,
playing musical instruments was “fundamental” to his teaching responsibilities. (Id. ¶ 5 (citing
Pl.’s Dep. Tr. 11).) At Thornton, Plaintiff initially taught in Room LL-01 (the “Band Room”),
which was located on the first floor of the building. (Id. ¶ 7 (citing Smith Decl. Ex. F (“Bradley
Dep. Tr.”), at 15–16 (Dkt. No. 35-6)).) The Band Room sometimes experienced flooding from
rainstorms. (Id. ¶ 8 (citing Bradley Dep. Tr. 15–16).) When flooding occurred, Plaintiff was
moved to another classroom pursuant to a schedule that the administration created for such
occasions. (Id.)
2. Transfer Application
In the spring or summer of 2015, Plaintiff applied to transfer to a position in a different
school in the District. (Decl. of Bruce Purse (“Pl. Decl.”) ¶¶ 4–5 (Dkt. No. 37).) 2 According to

2

Defendant notes in its Reply that the documents attached to Plaintiff’s Declaration as
Exhibits A and B were not previously identified or produced to Defendant, and points out certain
inconsistencies throughout the document and Plaintiff’s Declaration. (Def.’s Reply in Supp. of
Mot. (“Def.’s Reply”) 4 n.1 (Dkt. No. 40).) Although the Court considers Plaintiff’s Declaration
and these documents herein, the documents attached to Plaintiff’s Declaration are not dispositive
to the Court’s resolution of the Motion.
3

Plaintiff, at that time, he was “aware that the school building in which [he] was working was
detrimental to [his] health,” and although he did not know the cause of the problem, he “certainly
suspected that the mold in the school building was an issue.” (Id. ¶ 4.) At the same time as
Plaintiff’s transfer application, he spoke to Thornton Principal Sharon Bradley (“Bradley”) about
the Band Room, and she told Plaintiff that she would “work on fixing the water problem in [his]
classroom.” (Id.) Plaintiff avers that he did “not couch[]” his transfer request “in terms of [his]
medical condition,” and “did not wish to put [his] medical issues and the condition of the
building in play.” (Id. ¶¶ 4, 6.)
Evelyn Collins (“Collins”), the Head of Arts for the District, processed Plaintiff’s transfer
application. (Id. ¶ 5.) Plaintiff told Collins “of [his] issues at Thornton,” and Collins told him
that there was a music teacher position open at Graham Elementary School (“Graham”). (Id.) 3
Plaintiff met with the principal of Graham, who said that he would be happy to have Plaintiff
teach music at the school, and met with Collins again in June 2015, who told Plaintiff that his
move to Graham was approved. (Id.) 4 However, on June 15, 2015, Plaintiff was informed via
letter that his request for transfer was not approved “based on [his] interview,” although Plaintiff
states in his Declaration that he was rejected “by reason of a meeting of the principal’s
committee for the [s]chool [d]istrict.” (Id. ¶ 5; id. Ex. B (“June 15, 2015 Gagne Kerpiewski
Letter”) (Dkt. No. 37-1).)
Plaintiff also notes that “several years prior” to his 2015 transfer application, the District
“attempted to terminate [him] as a result of [his] medical condition.” (Pl.’s Decl. ¶ 6.) Plaintiff

3

Plaintiff’s application to transfer states that he applied to a position at “Columbus or
Mandela High.” (Pl. Decl. Ex. A (“Apr. 5, 2015 Appl.”) (Dkt. No. 37-1).)
4

Plaintiff does not submit direct evidence that supports the alleged statements made by
Collins and the principal, which therefore appear to be inadmissible hearsay.
4

states that an attorney helped him to obtain tenure and remain at Thornton. (Id.) Bradley also
referenced “a time where [Thornton] w[as] asking not to renew [Plaintiff]” during her deposition,
noting that she recommended that Plaintiff not return because “[t]he level of work was[] [not] to
the standard that [Bradley] thought was best for the students.” (Bradley Dep. Tr. 13–14.)
According to Bradley, this decision was unrelated to Plaintiff’s health. (Id. at 14.)
3. Meetings with Thornton Administration
According to Plaintiff, the first time he spoke to Bradley about mold in the Band Room
“could have been as early as 2013, but it[] [was] definitely 2014.” (Pl.’s Dep. Tr. 28.) 5 Plaintiff
does not have records of these early conversations with Bradley, though he remembers showing
her the alleged mold in his classroom, and Bradley responding that she would have the custodian
look at it because she was not qualified to know what it was. (Smith Decl. Ex. T (“Pl.’s Hr’g
Tr.”), at DEF 318–19 (Dkt. No. 35-20).) He also recalled that the custodians knew about the
mold at this time and that they reported it to Bradley and the “Building and Grounds head.” (Id.
at DEF 317–18.) Although Buildings and Grounds personnel (“Buildings and Grounds”)
removed carpeting from the Band Room early on, Plaintiff testified that the mold started to grow
in the practice rooms and storage room, which he constantly went into, and recalled that he
discovered mold in “a few different places in his classroom” in June 2015. (Id. at DEF 316; Pl.’s
Dep. Tr. 28–29.) Plaintiff also thought that Thornton was supposed to “ameliorate the situation
[after] the initial mold conversation” he had with Bradley in August 2014, but that this
amelioration never took place, and when he returned to Thornton in September 2014, the Band
Room had been “festering at the time.” (Id. at 27–28.) Plaintiff later told his pulmonary

5

At a later point in his deposition, Plaintiff claimed that the state of his health
“sometimes” affects his memory and “being totally exact is not easy” for him. (Pl.’s Dep. Tr.
46–47.)
5

specialist, Dr. Irene Grant (“Dr. Grant”), that black mold was found in his classroom in 2015.
(Smith Decl. Ex. U (“Grant’s Hr’g Tr.”), at DEF 293 (Dkt. No. 35-21).) Plaintiff states that
during the summer of 2015, his respiratory condition improved, but when he returned to
Thornton in September 2015, his condition again immediately worsened. (Pl. Decl. ¶ 5.)
However, Plaintiff did not recall telling Bradley that he was sick until their October 2015
meeting, although he also testified that Bradley had been “abreast . . . [of] a time [he] was sick
before,” but they “did not have all the answers for what was making [him] sick.” (Pl.’s Dep. Tr.
28, 30, 33.)
On October 13, 2015 at 2:20 p.m., Plaintiff sent an email to Bradley and copied Michael
Baldino (“Baldino”), the union’s OSHA representative. (Def.’s 56.1 ¶ 9 (citing Pl.’s Dep. Tr.
31; Smith Decl. Ex. G (“Oct. 13, 2015 Bradley Email”) (Dkt. No. 35-7)).) Plaintiff requested a
meeting to discuss “the perspective [sic] mold in the room and it’s [sic] cleanup along with how
it affects [his] health and [his] doctor’s results as a consequence of [his] recent respiratory
illness.” (Id. ¶ 10 (citing Oct. 13, 2015 Bradley Email).) Bradley responded on October 13 at
3:25 p.m. that she would find a time to meet with Plaintiff, and copied several individuals,
including a union representative, the Head of Buildings and Grounds, and the Acting Head
Custodian. (Id. ¶¶ 11–12 (citing Pl.’s Dep. Tr. 35–36; Oct. 13, 2015 Bradley Email).) Bradley
also wrote that “the substance in [the Band R]oom does have an appearance of something that
looks like mold,” but that they would need to test the substance to be sure. (Id. ¶ 14 (citing Pl.’s
Dep. Tr. 36; Oct. 13, 2015 Bradley Email).) She stated that Buildings and Grounds had worked
on “areas that had challenges,” including the Band Room, over the previous weekend, and that
the school would perform an air quality test that week, the date of which Bradley would tell
Plaintiff at their meeting. (Oct. 13, 2015 Bradley Email.) Although Plaintiff testified that he

6

could not “say that they did or did not [clean the Band Room] on that weekend . . .[,] [i]t took
them weeks to even try to remediate the situation.” (Pl.’s Dep. Tr. 54.) In addition to sending
this email, Bradley requested that members of Buildings and Grounds check the Band Room, and
was informed that this area was already being worked on. (Def.’s 56.1 ¶ 13 (citing Bradley Dep.
Tr. 33–34).)
On October 14, 2015, Plaintiff met with Bradley. (Id. ¶ 16 (citing Smith Decl. Ex. H
(“Oct. 22, 2015 Bradley Mem.”) (Dkt. No. 35-8); Pl.’s Dep. Tr. 58–59).) 6 During this meeting,
Plaintiff told Bradley that he believed that the mold in the Band Room had contributed to his
respiratory infection and gave Bradley two letters from his physician, Dr. Joseph Casino (“Dr.
Casino”). (Id. ¶¶ 17–18 (citing Pl.’s Dep. Tr. 58–59; Oct. 22, 2015 Bradley Mem.).) 7 The first
letter from Dr. Casino, dated August 31, 2015, stated that Plaintiff had “a history of heart and
lung disease,” and had been “complaining of cough and shortness of breath [that] appear[ed] to
be exacerbated when he [wa]s exposed to mold.” (Smith Decl. Ex. J (“Aug. 31, 2015 Dr. Casino
Letter”) (Dkt. No. 35-10).) The letter further stated that Plaintiff had documented “standing
water” and “visible mold on the walls” in his classroom, and that while he was not teaching over
the summer, his symptoms “improved significantly.” (Id.) However, upon returning to
Thornton, there had been “no change in the standing water or mold.” (Id.) Dr. Casino instructed

6

Plaintiff and Bradley were originally scheduled to meet on the morning of October 15,
2015, but on October 14, Plaintiff approached Bradley when he arrived at work, pointed his
finger at her, and said that he needed to talk to her “right now . . . no union rep—just you and I,
now.” (Oct. 22, 2015 Bradley Mem. 1.) Bradley agreed to speak and took Plaintiff to her
conference room. (Id.) Plaintiff disputes that he pointed his finger at Bradley. (Pl.’s Dep. Tr.
65.)
Plaintiff testified that he spoke to Bradley on October 5, but he appears to have been
referring to their October 14 conversation. (Pl.’s Hr’g Tr. DEF 321.)
7

Plaintiff previously testified that he first saw Dr. Friedman, his “primary doctor,” and
then was recommended to see Dr. Casino, a “pulmonologist.” (Pl.’s Hr’g Tr. DEF 315.)
7

that “repeated exposure to mold spores can precipitate illness in individuals who are
susceptible.” (Id.) He recommended that the “environment be cleaned extensively and
professionally,” or, in the alternative, that Plaintiff be relocated to “an alternative site in the
building” free of such issues. (Id.) Plaintiff believes that he previously provided this letter to
Bradley in August 2015, and that between the time he gave her the letter and the October 14
meeting, he was permitted to teach in alternative classrooms when he felt uncomfortable
teaching in the Band Room. (Def.’s 56.1 ¶¶ 20–21 (citing Pl.’s Dep. Tr. 50–51, 55); Pl.’s Dep.
Tr. 53.)
The second letter from Dr. Casino was dated October 12, 2015. (Smith Decl. Ex. K
(“Oct. 12, 2015 Dr. Casino Letter”) (Dkt. No. 35-11).) This letter stated that Dr. Casino
“recently examined” Plaintiff, that Plaintiff’s condition had not improved, and that a test
conducted on Plaintiff in September 2015 had found “positive antibody titers to mold.” (Id.) Dr.
Casino “reiterate[d] [his] August 31, 2015 concern” that “ongoing exposure to mold spores”
could exacerbate Plaintiff’s “existing condition.” (Id.) Dr. Casino wrote, “It is not advisable that
[Plaintiff] continue to be exposed to any live mold or mold spores,” and advised that Plaintiff
should use a “partial face mask to block [any] particulate matter from being inhaled into his
airways.” (Id.)
Bradley told Plaintiff that he should not return to the Band Room, and that he should
instead use the alternative classrooms. Bradley gave him a schedule identifying these
classrooms, which listed the same classrooms that Plaintiff previously used “whenever he felt it
was necessary.” (Def.’s 56.1 ¶¶ 23–24 (citing Pl.’s Dep. Tr. 82–84, 86; Oct. 22, 2015 Bradley
Mem.; Smith Decl. Ex. L (“Purse Room Sched.”) (Dkt. No. 35-12)).) According to Plaintiff,
either Bradley or “Ms. Morales” (“Morales”), the assistant principal, gave him the schedule.

8

(Pl.’s Dep. Tr. 83, 100.) Plaintiff testified that these rooms did not flood, but that some of them
were “prone to leaks . . . through the window” and had inadequate heat. (Id. at 85.) However,
Plaintiff also testified that there was “no leakage” in these rooms of the type of water that was in
the Band Room. (Pl.’s Hr’g Tr. DEF 328.) Although Plaintiff thought that there was a
“possibility” of mold on the higher floors, this suspicion was unconfirmed. (Pl.’s Dep. Tr. 113.)
Plaintiff also would have preferred to teach in classrooms that were “more conducive to teaching
music,” (Def.’s 56.1 ¶ 26 (citing Pl.’s Dep. Tr. 150–51)), and thought that the Band Room was
“the only place that [he] could teach . . . [m]usic” because of the instruments and SMART board
available, (Pl.’s Dep. Tr. 76). Although Plaintiff requested to teach in a large theater room with a
stage on the third floor, Bradley gave that room to a different teacher. (Id. at 149.) In the
alternative classrooms, Plaintiff testified that he “was at a deficit always.” (Id. at 151.)
Plaintiff also testified that he remained sick in “whatever room he was in,” even if it was
not the Band Room, (id. at 66), and that a “bevy of [employees]” had concerns about the mold at
the school, (id. at 87). However, at the time of their meeting, Plaintiff did not inform Bradley
that he was unable to teach in the alternative classrooms or that the schedule was unacceptable,
because he “did not have any basis to say so at that time.” (Def.’s 56.1 ¶ 25 (citing Pl.’s Dep. Tr.
86–89).) Plaintiff did state that he told Bradley that he “did go to those rooms initially from her”
and that he was “coughing in those rooms [on the third floor] too at that time,” though it is
unclear from Plaintiff’s testimony whether and when he informed Bradley of this fact. (Pl.’s
Dep. Tr. 48–49.) Plaintiff later clarified that he found himself coughing the most in Room 2-08,
one of the alternative classrooms, which he “would only say . . . to . . . Morales,” and that he had
coughed in “other parts of the building on the cellar floor,” but he “never said” to anyone at
Thornton that he was sick in “every room [he went] to.” (Id. at 87, 91.) According to Bradley,

9

three to four other rooms in the school suffered from flooding, each of which was on the same
level as the Band Room. (Bradley Dep. Tr. 18.)
Plaintiff does not dispute that Bradley granted both of Dr. Casino’s recommendations—
that Plaintiff be relocated within the building at Thornton and that he be permitted to wear a face
mask—although Plaintiff thought that Bradley said that he could wear a mask in the Band Room
but “did not say that [he] could wear the mask in the building.” (Def.’s 56.1 ¶¶ 47, 49–50 (citing
Pl.’s Dep. Tr. 66–68).) At the time, these were the only recommendations presented to Bradley.
(Id. ¶ 48 (citing Pl.’s Dep. Tr. 67).) Plaintiff also did not feel that it was necessary to wear the
face mask throughout the building, so he does not know whether he requested to do so, or
whether he only requested to wear the mask when he re-entered his classroom. (Id. ¶ 50 (citing
Pl.’s Dep. Tr. 67–68).)
At his October 14 meeting with Bradley, Plaintiff asked for permission to speak to Ken
Silver (“Silver”), the Assistant Superintendent of the District. Bradley gave Plaintiff permission
to do so. (Id. ¶ 27 (citing Oct. 22, 2015 Bradley Mem.; Pl’s Dep. Tr. 70–71).) During his
subsequent meeting with Silver, Plaintiff asked whether his mold concerns could be addressed,
such as cleaning or remediating the Band Room. 8 Silver told Plaintiff that the issue was being
addressed and referred to the air testing that Thornton was conducting. Plaintiff also raised the
possibility of transferring to a different building, which Silver said he would discuss with the
Superintendent. (Id. ¶¶ 28–29 (citing Pl.’s Dep. Tr. 71–73).) At that time, no medical
professional had told Plaintiff that Thornton’s building was making him sick, or that it was
necessary for his health to transfer elsewhere, but he asked about a transfer because he was

8

According to Plaintiff’s deposition testimony, “Mr. Polliccio,” the head of Buildings
and Grounds, also attended this meeting. (Pl.’s Dep. Tr. 35.)
10

concerned he “was getting sick from the environment somewhere in the school, whether it was
the [B]and [R]oom or in another place of [sic] the school.” (Id. ¶¶ 31–33 (citing Pl.’s Dep. Tr.
74–75, 77–78).) As such, Plaintiff did not tell Silver that a doctor had informed him that he
needed to transfer, and at the time, “didn’t have anything to substantiate [his] intuition of what
was happening to [him] until [he] got someone to tell [him] exactly what [his] condition was.”
(Id. ¶¶ 32–34 (citing Pl.’s Dep. Tr. 75, 77–78).) Plaintiff also raised the possibility of a transfer
because he felt that the administration at Thornton did not sufficiently support the music
program, and hoped that a different administration would provide him with more support. (Id.
¶ 35 (citing Pl.’s Dep. Tr. 103–05).) Plaintiff asked Silver whether he could speak to the
Superintendent, but Silver said that he was not available. (Pl.’s Dep. Tr. 78–79.) According to
Plaintiff, Silver called him the following day to say that “they had basically declined” any
“concerns that [Plaintiff] had for trying not to be in the environment of the school,” and that
Plaintiff was to continue working in the alternative classrooms. (Pl.’s Hr’g Tr. DEF 322–23.)
On October 13, 2015, an air quality test was performed in the Band Room and throughout
the building. (Def.’s 56.1 ¶ 37 (citing Pl.’s Dep. Tr. 37; Bradley Dep. Tr. 28; Smith Decl. Ex. M
(“Oct. 14, 2015 Air Report”) (Dkt. No. 35-13)).) 9 According to the air quality test, the mold
level in the building was “fairly low,” and had mold levels that were “all below . . . outdoor
levels.” (Smith Decl. Ex. N (“Oct. 15, 2015 Bradley Email”), at 2–3 (Dkt. No. 35-14).) The
report concluded that the mold level should therefore not be considered an “environmental
concern.” (Def.’s 56.1 ¶ 39 (citing Pl.’s Dep. Tr. 37, 39; Oct. 14, 2015 Air Report; Oct. 15, 2015
Bradley Email).) According to Defendant, these results matched the results of an earlier air

9

Defendant’s 56.1 Statement says that the test was performed on October 13, 2014.
(Def.’s 56.1 ¶ 37.) The Court assumes that this is a typographical error.
11

quality test performed in the building on October 1, 2014. (Id. ¶ 40 (citing Smith Decl. Ex. O
(“Oct. 1, 2014 Air Report”) (Dkt. No. 35-15)).) The earlier test found that there “were no mold
growth-like [sic] observed inside [the] Band Room,” and the mold readings inside the building
were “well below . . . the threshold level recommended by many industrial hygienists.” (Id. ¶ 41
(citing Oct. 8, 2015 Air Report DEF 250).) This report concluded that mold was “not a
recognized environmental concern in the Band Room.” (Id.)
On October 15, 2015, Plaintiff met with Bradley and Baldino and received the results of
the October 13 air quality test. (Id. ¶ 38 (citing Pl.’s Dep. Tr. 37, 47–49, 58–59, 68; Oct. 22,
2015 Bradley Mem.).) Plaintiff did not believe that the test results were accurate because he was
“getting sick from something” and “had to seek what that was.” (Id. ¶ 43 (citing Pl.’s Dep. Tr.
45).) He asked for a second opinion because “there was the appearance of mold in . . . [his]
office . . . [and] practice rooms,” and because he had smelled mold. (Pl.’s Dep. Tr. 42.) Baldino
informed him that the union had previously used the same company for air quality testing, the
results were credible, and that the union would not pay for any additional testing. (Def.’s 56.1
¶ 42 (citing Pl.’s Dep. Tr. 41–42, 79–80; Oct. 22, 2015 Bradley Mem.).) 10 During this meeting,
Bradley said that because Plaintiff was not comfortable with teaching in the Band Room, he
should not go in there and would instead teach out of the alternative classrooms for the
remainder of the school year. (Id. ¶ 46 (citing Pl.’s Dep. Tr. 84; Oct. 22, 2015 Bradley Mem.).)
Bradley offered to have someone obtain Plaintiff’s things from the Band Room, but Plaintiff
wanted to go himself. (Pl.’s Dep. Tr. 80–82; Oct. 22, 2015 Bradley Mem. DEF 113.) 11 Plaintiff

10

According to Bradley’s letter to Plaintiff, Baldino said that he would “check and see if
the union [wa]s willing to pay” for additional air testing. (Oct. 22, 2015 Bradley Mem. 2.)
11

Plaintiff testified that he asked the custodians to get his possessions, but they did not
know exactly what he needed. He said that he “basically had to leave all of [his] years of stuff.”
(Pl.’s Dep. Tr. 81.)
12

also informed Bradley that he would wear a mask in the Band Room and that one of the cleaners
would help him move his possessions. (Pl.’s Dep. Tr. 81–82; Oct. 22, 2015 Bradley Mem. DEF
113.)
According to Defendant, Plaintiff did not provide a copy of this test to “any person
trained in how to test air quality or for mold.” (Def.’s 56.1 ¶ 44 (citing Pl.’s Dep. Tr. 70).)
However, Plaintiff did provide a copy of the test to Dr. Grant and Dr. Casino. (Pl.’s 56.1 ¶ 44
(citing Pl. Decl. ¶¶ 9–13).) Dr. Casino did not inform Plaintiff that the air quality tests were
unreliable. (Def.’s 56.1 ¶ 45 (citing Pl.’s Dep. Tr. 74).) Plaintiff states that when Dr. Grant saw
the results, she noted that “the remediation done at the school was not successful.” (Pl. Decl.
¶ 13.) In a December 2015 letter to Plaintiff’s counsel, Dr. Grant wrote that “[e]nvironmental
testing done after remediation documented airborne Aspergillus/Penicillium, Chaetomium[,] and
Stachybotrys spores.” (Id. (citing Pl. Decl. Ex. F (“Dec. 30, 2015 Grant Letter”) (Dkt. No. 371)).) Dr. Grant explained that “Stachybotrys only proliferates with severe indoor wetness, and
usually does not produce airborne spores.” (Id.) Therefore, “the presence of these airborne
spores indicates continued active proliferation,” meaning that “the remediation was
unsuccessful.” (Id.) Tests on Plaintiff revealed that the “specific titers” in his body matched
spores detected in Thornton’s environmental testing. (Id.) Plaintiff speculates in his Declaration
that the weekend prior to the air test, “professionals scrubbed the walls and floor” so that mold
would not be visible to the testing company. (Pl. Decl. ¶ 12 (citing Oct. 13, 2015 Bradley Email;
Oct. 14, 2015 Air Report).) Also according to Plaintiff, after the testing was completed,
Thornton closed the Band Room, and a “bond issue was approved to remedy the causes of the
environmental issues in the building.” (Id. ¶ 3.) Plaintiff does not elaborate on what this means,

13

although in his deposition he also testified that there were “bond proposals” to alleviate the
problems in the Band Room after he complained about the conditions. (Pl.’s Dep. Tr. 73, 146.) 12
4. Plaintiff’s Absences from Work
Once Bradley gave Plaintiff a schedule of alternative classrooms, Plaintiff taught in those
rooms for one day. (Def.’s 56.1 ¶ 52 (citing Pl.’s Dep. Tr. 90–91).) After October 15, 2015,
however, Plaintiff did not return to work. (Id. ¶ 57 (citing Pl.’s Dep. Tr. 57, 59; Oct. 22, 2015
Bradley Mem.).) Plaintiff testified that on his last day, he did not feel well, went to the nurse,
and told Bradley that he was sick. (Pl.’s Dep. Tr. 91–93.) Bradley had a custodian escort
Plaintiff to his car. (Id. at 93.) At that time, Plaintiff intended to return when he felt better, and,
according to Defendant, he did not tell Bradley that he would be unable to return. (Def.’s 56.1
¶¶ 53–54 (citing Pl.’s Dep. Tr. 21–23, 92).) 13 Plaintiff’s “situation deteriorated,” and he
subsequently saw Dr. Casino, who informed him that he should consult with a specialist. (Pl.’s
Dep. Tr. 93.) Dr. Casino did not recommend that Plaintiff should stay out of work until he had a
consultation, and Plaintiff believed that he would come back to work when he felt better. (Def.’s
56.1 ¶¶ 55–56 (citing Pl.’s Dep. Tr. 92–94).)

12

Plaintiff does not provide a basis for his knowledge that a bond issue had been
approved to the remedy the “environmental issues” in the building, and also does not identify
evidence substantiating that “professionals” scrubbed the walls and floor of the building prior to
the air quality testing.
13

Plaintiff denies that he did not tell Bradley that he would not return until the building
was properly cleaned when he departed in October. (Pl.’s 56.1 ¶ 54 (citing Pl. Decl. ¶ 8).)
However, this is not an accurate characterization of the portion of the Declaration cited by
Plaintiff, which relates to the District’s claims that Plaintiff’s physical condition precluded him
from working after 2015. (Pl. Decl. ¶ 8.)

14

On October 22, 2015, Plaintiff received a memorandum from Bradley summarizing their
earlier meetings and attaching a copy of the letters from Dr. Casino, Plaintiff’s schedule of
alternative classrooms, and the air testing results. (Id. ¶ 58 (citing Pl.’s Dep. Tr. 58–59; Oct. 22,
2015 Bradley Mem.).) Bradley also sent a copy of this memorandum and the attachments to the
District Office, but she is not sure when it was received by the Office. (Id. ¶ 59 (citing Bradley
Dep. Tr. 36–37).) Bradley’s letter stated that at the conclusion of Plaintiff’s October 15 meeting
with Bradley and Baldino, they “all agreed” that Plaintiff would not return to the Band Room.
(Oct. 22, 2015 Bradley Mem. DEF 113.)
On October 23, 2015, Plaintiff received a letter from Assistant Superintendent Denise
Gagne-Kurpiewski (“Gagne-Kurpiewski”). (Def.’s 56.1 ¶ 60 (citing Pl.’s Dep. Tr. 89; Smith
Decl. Ex. P (“Oct. 23, 2015 Gagne-Kerpiewski Letter”) (Dkt. No. 35-16)).) The letter stated that
the District had not received documentation that Plaintiff could not report to work, and therefore
expected him to do so. (Id. ¶ 61 (citing Pl.’s Dep. Tr. 89–90; Oct. 23, 2015 Gagne-Kerpiewski
Letter).) Plaintiff testified that he recalled providing the District with documents about his
absence during this period. (Pl.’s Dep. Tr. 95.)
Shortly after October 23, 2015, Plaintiff received a letter from Dr. Grant, which Plaintiff
delivered to Beverly Morris (“Morris”) in the District’s Human Resources Department (“Human
Resources”) on October 29, 2015. (Def.’s 56.1 ¶¶ 63–64 (citing Pl.’s Dep. Tr. 109–10; Smith
Decl. Ex. Q (“Oct. 23, 2015 Grant Letter”) (Dkt. No. 35-17)).) Plaintiff recalled that he saw Dr.
Grant at least three times before she sent this letter, and his first appointment would have been
within the three-week period before he received it, (Pl.’s Dep. Tr. 111–12), but Dr. Grant
testified that she saw Plaintiff for the first time on October 23, 2015, (Grant’s Hr’g Tr. DEF
292). Dr. Grant wrote that Defendant suffered from “restrictive lung disease” exacerbated by

15

“re-exposures” to “heavy chronic visible environmental microbial exposure” at his job. (Oct. 23,
2015 Grant Letter.) Dr. Grant recommended that Plaintiff avoid returning to Thornton until it
was remediated by a “qualified environmental remediator” and “reevaluated by a certified indoor
environmentalist and microbial investigator.” (Def.’s 56.1 ¶ 65 (citing Pl.’s Dep. Tr. 112; Oct.
23, 2015 Grant Letter).) Dr. Grant said that any re-exposure would risk aggravating Plaintiff’s
condition and jeopardizing his health. (Oct. 23, 2015 Grant Letter.) Plaintiff interpreted this
letter to mean that any area of Thornton that “possibly contained mold needed to be remediated,
including the third floor.” (Def.’s 56.1 ¶ 66 (citing Pl.’s Dep. Tr. 112–13).) Plaintiff also
believed that until this remediation was completed, it was not safe for him to return to Thornton.
(Id. ¶ 67 (citing Pl.’s Dep. Tr. 114, 116).) According to Plaintiff, Dr. Grant also believed that
this was the case, and she thought that Thornton would be a “medical risk” until it was “proven
to be free of hazardous molds,” and that the building still needed more extensive testing. (Pl.’s
56.1 ¶¶ 66–67 (citing Pl. Decl. ¶¶ 9–10 (citing Grant’s Hr’g Tr. DEF 297–99)).) According to
Defendant and Plaintiff’s deposition testimony, Dr. Grant also told him that he was restricted
from working anywhere else when she first advised him not to return to work at Thornton.
(Def.’s 56.1 ¶¶ 68, 81 (citing Pl.’s Dep. Tr. 132).) However, Plaintiff now contends that Dr.
Grant only informed him not to work in the building at Thornton. (Pl.’s 56.1 ¶¶ 68, 81 (citing Pl.
Decl. ¶ 10 (citing Grant’s Hr’g Tr. DEF 300)).)
On October 28, 2015, the day before Plaintiff delivered Dr. Grant’s letter to Human
Resources, Plaintiff received a letter from Superintendent Dr. Kenneth Hamilton (“Hamilton”).
(Def.’s 56.1 ¶ 70 (citing Pl.’s Dep. Tr. 95–96; Smith Decl. Ex. R (“Oct. 28, 2015 Hamilton
Letter”) (Dkt. No. 35-18)).) Hamilton wrote that Plaintiff had sent him a letter on October 14,
2015 and informed Plaintiff that his requests for transfer and paid administrative leave were

16

denied as unreasonable, but advised Plaintiff that his workspace had been relocated to the
alternative rooms. (Oct. 28, 2015 Hamilton Letter.) Plaintiff did not recall sending a letter to
Hamilton or requesting paid administrative leave, but thought that if he did, it would have related
to mold and flooding in the Band Room, and may have included a request to transfer to a
different worksite, although Plaintiff admitted that at the time, he would not have known that it
was medically necessary to do so. (Pl.’s Dep. Tr. 97–98, 101–03, 107.) 14 Plaintiff also
suggested that the information referenced by Hamilton may have come from Gagne-Kerpiewski
and/or Plaintiff’s conversation with Silver. (Id. at 107.)
After submitting Dr. Grant’s letter to the District, Plaintiff believes that he spoke to
Kurpiewski about his inability to return to Thornton until all of the remediation efforts were
made. (Id. at 117.) Plaintiff also thought that he informed Bradley and Morales that he could
not return to the building until the situation was remediated. (Id. at 118.) Plaintiff did not have
any additional meetings with Silver, Bradley, or Human Resources where he reiterated his
request to work in a different building, though he thought that he tried to call Silver and
Hamilton but was unable to get in touch with them. (Def.’s 56.1 ¶¶ 75–76 (citing Pl.’s Dep. Tr.
119); Pl.’s Dep. Tr. 125.) Plaintiff also did not make any additional building transfer requests,
and he did not return to work any time after October 15, 2015. (Def.’s 56.1 ¶¶ 77, 80 (citing
Pl.’s Dep. Tr. 123–24, 130).) Plaintiff stated that he did not renew his request to transfer because
“[t]here was no reason . . . to do that,” and he “would not impress upon somebody to do
something for [him] or with [him] regarding a change . . . when it hasn’t been resolved as to why

14

The Court does not further address Plaintiff’s alleged request for paid administrative
leave, as Plaintiff does not recall making this request and has not raised it in his Complaint or his
response to the instant Motion.
17

or what it is.” (Id. ¶ 74 (citing Pl.’s Dep. Tr. 126).) Plaintiff also did not inform Bradley why he
was not returning to work, because he believed that his attorney would communicate this
information, although he did not know whether his attorney actually did so. (Id. ¶¶ 78–79 (citing
Pl.’s Dep. Tr. 130).) Plaintiff agreed that a fundamental element of being a teacher at Thornton
was the “ability to actual[ly] enter the building to teach.” (Id. ¶ 69 (citing Pl.’s Dep. Tr. 116).)
On January 7, 2016, Plaintiff received a letter from Bradley noting that as of December
30, 2015, he had been absent from Thornton for 44 and a half consecutive days. (Pl. Decl. ¶ 8
(citing id. Ex. D (“Jan. 7, 2016 Bradley Letter”) (Dkt. No. 37-1)).) Bradley indicated that she
had not received a physician’s note from Plaintiff, and instructed him to “produce a sufficient
[physician’s] certificate with an indication of anticipated return date . . . in order for the [D]istrict
to plan accordingly for teaching and learning.” (Jan. 7, 2016 Bradley Letter.) On February 23,
2016, Plaintiff’s attorney sent Bradley a letter noting his “surpris[e]” that the District “ha[d] not
responded in any [way] to [Dr. Grant’s] note dated October 23, 2015” and enclosing a copy of
Dr. Grant’s letter. (Pl. Decl. ¶ 8 (citing id. Ex. E (“Feb. 23, 2016 Powers Letter”) (Dkt. No. 371)).) 15 According to Plaintiff, the District “did not give [him] the opportunity to show whether
[he] could . . . work with the accommodation requested by [Dr. Grant],” and was “insisting” that
he return as of January 2016. (Id. ¶¶ 8, 11 (citing Jan. 7, 2016 Bradley Letter).) Once Plaintiff’s
accumulated sick leave ran out, Bradley “continuously checked to see if [he] had taken up other
work,” because if he had, he could lose his benefits from the District. (Id. ¶ 11.) According to
Plaintiff, the District “never met [him] or [his] representatives concerning the request for
accommodation from [his] doctor.” (Id. ¶ 8.)

15

In his letter, counsel for Plaintiff noted that he was responding to a letter from Bradley
dated February 4, 2016. (Feb. 23, 2016 Powers Letter.) The February 4, 2016 letter from
Bradley does not appear to be part of the record submitted to the Court.
18

5. Plaintiff’s Worker’s Compensation Claim and Resignation
In February 2016, Plaintiff filed a worker’s compensation claim (the “Claim”), asserting
that he was disabled and unable to work because he was “allergic to the environment” at
Thornton’s facilities. (Def.’s 56.1 ¶ 82 (citing Pl.’s Dep. Tr. 130–33; Smith Decl. Ex. S
(“Worker’s Comp. Claim”) (Dkt. No. 35-19)); Worker’s Comp. Claim 1.) Plaintiff wrote that he
became ill from exposure to allergens, including the non-removal of standing water and mold in
his classroom, and that he suffered from “respiratory illness, loss of voice, fungal arthritis, [and]
more complications,” including congestive heart failure. (Id.)
On June 22, 2016, Dr. Grant testified at a hearing in relation to Plaintiff’s Claim that the
building was a “medical risk” to Plaintiff until it was “proven to be free of hazardous molds,”
that Plaintiff was “very high risk,” and that when certain molds were airborne, it would be “a
problem.” (Pl.’s Decl. ¶ 9 (citing Grant Hr’g Tr. DEF 297).) Dr. Grant acknowledged that
testing had been done “after the remediation,” but further testified that the building had not been
tested for “micro toxins” and that “more extensive testing of the air systems” would need to be
done; only after such testing was completed would she agree that Plaintiff could return to the
building. (Id. ¶ 10 (citing Grant Hr’g Tr. DEF 298–99).) Dr. Grant would not agree that
Plaintiff could return to another portion of the same building that had not been exposed to mold
because “[a]ir is air,” the “building [wa]s exposed,” and “[i]n a sick patient like [Plaintiff], the
risk [wa]s too high,” but she did state that Plaintiff could return to work in a “clean building.”
(Id. (citing Grant Hr’g Tr. DEF 300); Grant Hr’g Tr. DEF 300.) With respect to Thornton, Dr.
Grant testified that Plaintiff could not return to work, even in a “well-ventilated classroom that
did not show any positive findings [of mold]” because “it was more likely probably than not that
the air ducts and interior walls [we]re contaminated.” (Def.’s 56.1 ¶ 85 (citing Grant’s Hr’g Tr.

19

DEF 298).) Dr. Grant opined that after Plaintiff’s first visit to her on October 23, 2015, she
thought that the “school was a hazardous environment that would make him progressively
sicker,” and that due to Plaintiff’s condition, he was “physically unable to work” in general and
was still unable to work at the time of the hearing. (Grant’s Hr’g Tr. DEF 305–06.) Later in the
hearing, Dr. Grant testified that Plaintiff could do “nontaxing sedentary work in a safe
environment,” such as sitting in front of a computer or stuffing envelopes, but testified, “[D]on’t
take him away from a table, and don’t expose him to anything.” (Id. at DEF 307.) Dr. Grant
attributed this conclusion to Plaintiff’s heart condition and respiratory issues. (Def.’s 56.1 ¶ 89
(citing Grant’s Hr’g Tr. DEF 307).) Dr. Grant stated that Plaintiff also suffers from high blood
pressure, arrhythmias, and a “very fragile heart.” (Grant’s Hr’g Tr. DEF 300.)
On July 7, 2016 Plaintiff testified at a hearing related to his Claim that it was his
understanding that as of his last visit with Dr. Grant, he was unable to return to work due to his
physical condition. (Def.’s 56.1 ¶ 84 (citing Pl.’s Dep. Tr. 135–36; Smith Decl. Ex. T (“Pl.’s
Hr’g Tr.”), at DEF 325 (Dkt. No. 35-20)).) Plaintiff further testified that at the time of his
October 2015 appointment with Dr. Grant, she stated that “given [his] current condition at that
particular time, [he] was not able to work at that time.” (Pl.’s Hr’g Tr. DEF 325.)
Dr. Carl Friedman (“Dr. Friedman”), an independent medical examiner who examined
Plaintiff in June 2016, also testified in connection with Plaintiff’s Claim on October 28, 2016.
(Def.’s 56.1 ¶ 90 (citing Smith Decl. Ex. V (“Friedman’s Hr’g Tr.”) (Dkt. No. 35-22)).) He
agreed that Plaintiff was “severely disabled” and could not work due to his allergies, asthma,
chronic obstructive pulmonary disease, and stage four congestive heart failure. (Id. (citing
Friedman’s Hr’g Tr. DEF 369).) Freidman confirmed that Plaintiff “developed a systemic
infection of mold, secondary to mold exposure,” which was diagnosed with blood and urine tests

20

and treated with antifungal medications. (Friedman’s Hr’g Tr. DEF 369.) In response to a
hypothetical question, Dr. Friedman testified that even if Plaintiff did not suffer from cardiac
issues, at most, he could perform “sedentary work.” (Def.’s 56.1 ¶ 91 (citing Friedman’s Hr’g
Tr. DEF 370).)
On October 31, 2016, the Worker’s Compensation Board disallowed Plaintiff’s claim.
The Board found that while Plaintiff could not tolerate mold exposure due to numerous medical
issues, his exposure was no greater at Thornton than it was outside of the building. (Smith Decl.
Ex. W (“Worker’s Comp. Decision”) (Dkt. No. 35-23).) According to Defendant, this finding
“refut[ed] the claim that Plaintiff had contracted an occupational disease arising out of the course
of his employment.” (Def.’s 56.1 ¶ 92 (citing Pl.’s Dep. Tr. 137–38; Worker’s Comp.
Decision).) Plaintiff admits the truth of this statement. (Pl.’s 56.1 ¶ 92.)
On December 15, 2016, Plaintiff resigned from the District by hand-delivering a letter to
Human Resources which stated that his health was “seriously jeopardized” by the mold condition
at the school. (Def.’s 56.1 ¶ 93 (citing Pl.’s Dep. Tr. 139; Smith Decl. Ex. X (“Dec. 15, 2016 Pl.
Letter”) (Dkt. No. 35-24)).) After receiving a directive from Human Resources, Plaintiff
resubmitted his letter on January 12, 2017. (Id. ¶ 94 (citing Pl.’s Dep. Tr. 140–42; Smith Decl.
Ex. Y (“Jan. 12, 2017 Pl. Letter”) (Dkt. No. 35-25)).) Plaintiff testified that he thinks he may not
have resigned if the District had conducted the remediation in Dr. Grant’s letter. (Pl.’s Dep. Tr.
143.) He recalled that in January 2017, he was still in the process of getting better “with the
hope of eventually going back to work,” although he thought that he was at an “impasse” with
the District because they had not performed the remediation advised by Dr. Grant. (Id. at 144–
45.)

21

Effective January 16, 2017, the District accepted Plaintiff’s resignation. (Def.’s 56.1 ¶ 95
(citing Pl.’s Dep. Tr. 142; Smith Decl. Ex. Z (“Mar. 1, 2017 Pl. Letter”) (Dkt. No. 35-26)).)
Plaintiff has not been employed on a full-time basis since he resigned, although he substituted
two to three times a week beginning in 2017 and recalled applying to teach at “the Fieldstone
Schools.” (Id. ¶ 96 (citing Pl.’s Dep. Tr. 16–17); Pl.’s Dep. Tr. 19–20, 152–53.) In 2018,
Plaintiff officially retired from the District. (Id. ¶ 97 (citing Pl.’s Dep. Tr. 16–17).) Between
Plaintiff’s resignation and his retirement, he did not know whether there was a time where he
believed he was physically able to return to full-time teaching. (Pl.’s Dep. Tr. 154.)
B. Procedural History
On November 6, 2017, Plaintiff filed his Complaint. (See Compl.) Defendant filed its
Answer on December 7, 2017. (Dkt. No. 7.) The case was automatically referred to mediation,
(Dkt. No. 10), and the Parties engaged in a mediation session on February 20, 2018, (Dkt. (entry
for Feb. 22, 2018)). On September 17, 2018, the Parties appeared for an initial conference, and
the Court adopted a case management schedule. (Dkt. (minute entry for Sept. 17, 2018); Dkt.
No. 15.) The case was subsequently referred to Magistrate Judge Judith C. McCarthy (“Judge
McCarthy”) for general pre-trial on September 28, 2018. (Dkt. No. 16.) Thereafter, the Parties
engaged in discovery, receiving several extensions from the Court. (Dkt. Nos. 21, 25, 27.) On
August 23, 2019, with leave of the Court, Defendant filed the instant Motion. (Not. of Mot.;
Def.’s Mem. in Supp. of Mot. (“Def.’s Mem.”) (Dkt. No. 33); Def.’s 56.1; Smith Decl.) Plaintiff
filed an Opposition on September 20, 2019. (Pl.’s Response in Opp’n to Mot. (“Pl.’s Mem.”)
(Dkt. No. 38); Pl. Decl.; Pl.’s 56.1.) Defendant filed its Reply on October 11, 2019. (Def.’s
Reply.)

22

II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted); see also Borough of Upper Saddle River
v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). “It is the
movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v. Marchinkowski, 137 F. Supp.
3d 495, 521 (S.D.N.Y. 2015) (same).
“However, when the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant’s claim,” in which case “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114,
123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, “[t]o survive a [summary
judgment] motion . . ., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility
that his allegations were correct; he need[s] to ‘come forward with specific facts showing that
there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012)
(emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

23

586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the pleadings,”
Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks
omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for
summary judgment is properly supported by documents or other evidentiary materials, the party
opposing summary judgment may not merely rest on the allegations or denials of his pleading
. . . .”). And, “[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[t]he role
of the court is not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.” Brod, 653 F.3d at 164 (quotation marks omitted). Thus, a court’s goal should
be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr
Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quotation marks omitted) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986)). However, a district court should consider only evidence
that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d
736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the
statements ‘must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.’” DiStiso,
691 F.3d at 230 (quoting Fed. R. Civ. P. 56(c)(4)).

24

As a general rule, “district courts may not weigh evidence or assess the credibility of
witnesses at the summary judgment stage.” Jeffreys v. City of New York, 426 F.3d 549, 551 (2d
Cir. 2005); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (noting that at the
summary judgment stage, the court is not to “weigh the evidence and determine the truth of the
matter”); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999) (“Assessments of
credibility and choices between conflicting versions of the events are matters for the jury, not for
the court on summary judgment.” (quotation marks omitted)). Where the evidence presents “a
question of ‘he said, she said’” the court “cannot . . . take a side at the summary judgment stage.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010); see also Kassel
v. City of Middletown, 272 F. Supp. 3d 516, 535 (S.D.N.Y. 2017) (noting that “it is not the role
of the [c]ourt at summary judgment to resolve [a] factual clash”); Bale v. Nastasi, 982 F. Supp.
2d 250, 258–59 (S.D.N.Y. 2013) (stating that “[w]here each side . . . tells a story that is at least
plausible and would allow a jury to find in its favor, it is for the jury to make the credibility
determinations and apportion liability, and not for the court.”). And, even if the non-movant’s
evidence is “thin, [a non-movant’s] own sworn statement is adequate to counter summary
judgment.” Scott v. Coughlin, 344 F.3d 282, 290–91 (2d Cir. 2003) (holding that “[t]he
credibility of [Plaintiff’s] statements and the weight of contradictory evidence may only be
evaluated by a finder of fact.”).
B. Analysis
1. Failure to Accommodate
Defendant argues that it sufficiently accommodated Plaintiff when it granted two of his
requested accommodations, that Plaintiff has not satisfied his evidentiary burden with respect to

25

his request to transfer, and that at the time of Dr. Grant’s recommendations, Plaintiff was unable
to work in any capacity. (Def.’s Mem. 7–12.)
a. Applicable Law
“Discrimination in violation of the ADA includes, inter alia, ‘not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability.’” McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir.
2009) (quoting 42 U.S.C. § 12112(b)(5)(A)). A “qualified individual” under the ADA is “an
individual who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); see
also McBride, 583 F.3d at 96.
Accordingly, an ADA plaintiff can establish a prima facie claim of disability
discrimination based on the failure to accommodate a disability by proving the following
elements:
(1) [the] plaintiff is a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, [the] plaintiff could perform the essential functions of the job at
issue; and (4) the employer has refused to make such accommodations.
McMillian v. City of New York, 711 F.3d 120, 125–26 (2d Cir. 2013) (citation omitted).
Once a plaintiff has established a prima facie case, the burden shifts to the defendant to
show “(1) that making a reasonable accommodation would cause it hardship, and (2) that the
hardship would be undue.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.
1999) (citation omitted). Plaintiff must plead sufficient facts to raise the inference “that the
failure was motivated by discriminatory intent.” Lyman v. City of New York, No. 01-CV-3789,
2003 WL 22171518, at *6 (S.D.N.Y. Sept. 19, 2003) (citation and quotation marks omitted); see
also Logan v. Matveevskii, 57 F. Supp. 3d 234, 258 (S.D.N.Y. 2014) (“[A] plaintiff is required to
26

provide evidence that the delay was motivated by an employer’s discriminatory intent, as
opposed to mere negligence.”).
b. Dr. Casino Accommodations
With respect to Dr. Casino’s recommended accommodations, Defendant argues that
Principal Bradley granted each of the requests, and thus, Plaintiff cannot bring a failure to
accommodate claim because he has not established that Defendant “refused to make . . .
accommodations,” McMillian, 711 F.3d 120 at 126. (Def.’s Mem. 8–9.) It is undisputed that
Plaintiff provided two letters from Dr. Casino to Bradley when they met on October 14, 2015,
one of which Plaintiff believes he provided her earlier as well. (Def.’s 56.1 ¶¶ 18, 20 (citing Oct.
22, 2015 Bradley Mem.; Pl.’s Dep. Tr. 50); Pl.’s 56.1 ¶¶ 18, 20.) Dr. Casino recommended that
Plaintiff’s environment be “cleaned extensively and professionally,” or, in the alternative, that
Plaintiff be “relocated to an alternative site in the building,” and that Plaintiff should use a
“partial face mask.” (Aug. 31, 2015 Dr. Casino Letter; Oct. 12, 2015 Dr. Casino Letter.) It is
also undisputed that Bradley permitted Plaintiff to teach in alternative classrooms “when he felt
uncomfortable doing so in his normal classroom,” and provided Plaintiff with a schedule
identifying those alternative classrooms. (Def.’s 56.1 ¶¶ 21, 23 (citing Pl.’s Dep. Tr. 55, 82–83;
Oct. 22, 2015 Bradley Mem.; Oct. 14, 2015 Air Report); Pl.’s 56.1 ¶¶ 21, 23.) Bradley informed
Plaintiff that rooms were being “worked on,” and air tests were being conducted to determine the
presence of mold in the building. (See Def.’s 56.1 ¶ 14 (citing Pl.’s Dep. Tr. 36; Oct. 13, 2015
Bradley Email).) At no time did Plaintiff inform Bradley that he was unable to teach in the
alternative rooms, and he “did [not] . . . have any basis to say so at the time.” (Id. ¶ 25; Pl.’s 56.1
¶ 25; Pl.’s Dep. Tr. 86–89.) Although Plaintiff testified that he was still sick in these classrooms,

27

and that he continued to cough in at least one of them, Plaintiff does not allege that these rooms
suffered from the same visual mold as the Band Room. (See Pl.’s Dep. Tr. 86–91, 113.)
Although not noted in Plaintiff’s or Defendant’s 56.1 Statement, the record shows that it
is also undisputed that Bradley allowed Plaintiff to wear a partial face mask while in the Band
Room. (Id. at 65–66.) Although Plaintiff stated that Bradley did not tell him that he could wear
a mask everywhere in the building, he also noted that he did not feel it was necessary to do so,
and thus he is not sure whether he asked Bradley if he could keep his mask on throughout the
building. (Id. at 67–68.) Therefore, there is “no genuine dispute that [Defendant] extended
[Plaintiff] the accommodation[s] suggested by [Plaintiff’s] doctor[] and thereby addressed his
documented disability.” Quadir v. N.Y. State Dep’t of Labor, No. 13-CV-3327, 2016 WL
3633406, at *3 (S.D.N.Y. June 29, 2016), aff’d, 691 F. App’x 674 (2d Cir. 2017). Thus, to the
extent that Plaintiff attempts to base a claim of failure to accommodate on Dr. Casino’s
recommended accommodations—and, from his Complaint and Opposition, it appears he does
not—Defendant’s Motion is granted.
c. Requested Transfer
As with the accommodations proposed by Dr. Casino, Plaintiff does not appear to
contend in his Complaint or Opposition that Defendant’s denial of his request to transfer prior to
receiving Dr. Grant’s recommendations constituted a failure to accommodate separate from
Defendant’s failure to respond to Dr. Grant’s recommendations. (See generally Compl.; Pl.’s
Mem.) Given that Defendant raises this transfer request in its Memorandum, (Def.’s Mem. 9–
12), however, and that Plaintiff describes the request in his Declaration and facts section of his
Opposition, (Pl.’s Mem. 4–5; Pl.’s Decl. ¶ 7), the Court addresses it herein.

28

In mid-October 2015, Plaintiff raised the possibility of transferring to a different building
in his meeting with Silver, which took place shortly after his meeting with Bradley. (Def.’s 56.1
¶¶ 28–29 (citing Pl.’s Dep. Tr. 71–73).) Plaintiff also may have requested a transfer in an
October 14, 2018 letter to Hamilton. (Pl.’s Dep. Tr. at 102–03.) Defendant argues that
Plaintiff’s claim with respect to this request should be dismissed because Plaintiff did not
provide medical documentation to support the request, did not present evidence that a transfer
was necessary after the two granted accommodations, failed to meet his evidentiary burden with
respect to the transfer, and in any event, was unable to return to work in any capacity “almost
immediately after” making the request. (Def.’s Mem. 9–12.)
“An ADA plaintiff does not satisfy h[is] burden to identify a potential accommodation
merely by reciting the formula that h[is] employer could have reassigned h[im]. Instead, []he
must demonstrate the existence, at or around the time when accommodation was sought, of an
existing vacant position to which []he could have been reassigned.” McBride, 583 F.3d at 97–98
(citation omitted). “[T]he position sought must be vacant within a reasonable amount of time,”
Shannon v. N.Y. C. Transit Auth., 332 F.3d 95, 104 (2d Cir. 2003) (citation omitted), and “an
employer need not reassign an employee if no position is vacant. Nor is the employer obliged to
create a new position to accommodate the employee,” Norville v. Staten Island Univ. Hosp., 196
F.3d 89, 99 (2d Cir. 1999) (citation omitted). Further, although the reasonableness of an
employer’s accommodation is often a fact question for the jury, “the ADA imposes no liability
for an employer’s failure to explore alternative accommodations when the accommodations
provided to the employee were plainly reasonable.” Noll v. Int’l Bus. Machs. Corp., 787 F.3d
89, 98 (2d Cir. 2015); see also Wenc v. New London Bd. of Educ., No. 14-CV-840, 2016 WL
4410061, at *3 (D. Conn. Aug. 16, 2016) (“[B]ecause the [defendant] complied with [the

29

plaintiff’s doctor’s] recommendation, it provided [the plaintiff] with a plainly reasonable
accommodation . . . .” (citation omitted)), aff’d, 702 F. App’x 27 (2d Cir. 2017).
Here, Plaintiff met with Bradley on October 13, 2015 and provided her with
recommendations from Dr. Casino, which she granted during the meeting. In fact, Plaintiff
testified that at the time, he “didn’t have anything to substantiate [his] intuition of what was
happening to [him] until [he] got someone to tell [him] exactly what [his] condition was.” (Pl.’s
Dep. Tr. 78.) It is further undisputed that at the time Plaintiff asked Silver for a transfer, shortly
after his meeting with Bradley, there was no medical evidence contradicting Dr. Casino’s
recommendations, no medical professional had told Plaintiff that it was necessary for his health
to transfer out of the building, and Plaintiff did not inform Silver that a doctor had given him
such advice. (Id. at 74–75, 77–78, 102–03.) Further, contrary to Plaintiff’s contention,
Defendant did provide Plaintiff with a reason for its denial of his transfer request—that the
requests were unreasonable, and that Defendant had already made arrangements to relocate
Plaintiff to different rooms in the building, (see Oct. 28, 2015 Hamilton Letter), consistent with
Dr. Casino’s suggested accommodations. Because at the time of Plaintiff’s transfer request,
Defendant had complied with Plaintiff’s doctor’s recommendation, the Court finds that
Defendant provided Plaintiff with a “plainly reasonable accommodation,” particularly in light of
the fact that Plaintiff did not object to Defendant’s implementation of Dr. Casino’s suggested
accommodations, and that Plaintiff provided no additional medical evidence for his transfer
request.
While “[i]t is true that the treating physician does not have the final word on determining
what is or is not reasonable[,] . . . in a case where there is no medical evidence to the contrary,
and the treating physician’s opinion does not appear on its face to be outrageous, it is appropriate

30

for the [c]ourt to give great weight to the physician’s opinions as to the nature of the
accommodations required for his patient.” D’Amico v. N.Y. State Bd. of Law Exam’rs, 813 F.
Supp. 217, 223 (W.D.N.Y. 1993); see also Noll, 787 F.3d at 94 (finding that where the
“employer has already taken . . . measures to accommodate the disability, the employer is
entitled to summary judgment if, on the undisputed record, the existing accommodation is
‘plainly reasonable’” (citation omitted)); Wenc, 2016 WL 4410061, at *15 (finding that the
defendant reasonably accommodated the plaintiff teacher when it granted “a number of plainly
reasonable accommodations . . . on a continuous basis,” including a temporary medical leave,
which was supported by notes from the plaintiff’s doctor, but did not grant the plaintiff’s request
to transfer to a different grade); Bielski v. Green, 674 F. Supp. 2d 414, 425–26 (W.D.N.Y. 2009)
(observing that because the defendant’s accommodation was “consistent with” the advice of the
plaintiff’s physician, summary judgment on the plaintiff’s reasonable accommodation claim was
appropriate).
The Court also notes that Plaintiff attempts to demonstrate that there was a vacancy “at or
around” the time of his transfer request by explaining that in April 2015, he applied and was
denied an open position at Graham. (Pl. Decl. ¶¶ 4–5.) This was not a request for an
accommodation, as Plaintiff testified that he did “not couch[]” his transfer request “in terms of
[his] medical condition,” (id. ¶ 4), and testified in his deposition that he did not inform Bradley
that the mold was making him ill until October 2015, (Pl.’s Dep. Tr. 30). However, despite the
fact that the music position was available in April 2015, Plaintiff did not request to transfer on
the basis of his disability until October 2015. (Def.’s 56.1 ¶¶ 28–29 (citing Pl.’s Dep. Tr. 71–
73).) Although the Court is hard-pressed to find a case with similar circumstances, a six-month
period between a vacant position and a request to transfer seems lengthy, particularly in light of

31

McBride’s directive that a vacant position must be available “at or around” the time of the
requested transfer. Cf. Wiechelt v. United Parcel Serv., Inc., No. 03-CV-345, 2007 WL
2815755, at *2 (W.D.N.Y. Sept. 24, 2007) (finding that a vacant position existed when the
plaintiff showed that one was available “a little more than a month” before the plaintiff was
seeking it); Picinich v. United Parcel Serv., 321 F. Supp. 2d 485, 506 (N.D.N.Y. 2004)
(determining that there was an issue of fact with respect to the existence of vacant positions
when a position was filled one month after the plaintiff asked for a transfer). However, the
Court need not determine whether Plaintiff has satisfied his burden of establishing a vacancy,
because Defendant’s denial of Plaintiff’s first transfer request was plainly reasonable, as
Defendant had granted two accommodations requested by Plaintiff and Dr. Casino shortly
beforehand.
d. Dr. Grant Accommodations
According to Defendant, Plaintiff cannot base a failure to reasonably accommodate claim
on Dr. Grant’s recommendation that Plaintiff avoid returning to Thornton until it was remediated
by a “qualified and certified environmental remediator” and “re-evaluated by a certified indoor
[e]nvironmentalist . . . [and] [b]oard council [c]ertified [m]icrobial [i]nvestigator,” (Oct. 23, 2015
Grant Letter), because it is “undisputed” that at the time Dr. Grant proposed this accommodation,
Plaintiff was unable to work “in any capacity,” and thus not a qualified individual under the
ADA, (Def.’s Mem. 12). Plaintiff argues that Defendant failed to engage in an interactive
process after he made a specific accommodation request, and that he could have performed the
essential functions of his job with that accommodation. (Pl.’s Mem. 7–9.) 16

16

Plaintiff states that Dr. Grant recommended not only that the environment be
remediated and subject to further testing, but also that Plaintiff be transferred to another building.
A recommendation of transfer is not apparent from the face of Dr. Grant’s letter to Defendant,
32

Plaintiff’s claim that he could have performed the essential functions of his job with
Grant’s proposed accommodations is belied by his deposition testimony. With respect to
returning to work at Thornton, Plaintiff clearly testified that he was not to return until the
remediation and testing set forth by Dr. Grant had been performed. For example, Plaintiff agreed
that “[u]ntil all the procedures set forth in the letter were done[,] [Plaintiff’s] position was [that
he] could[] [not] return to teach in the building,” that Dr. Grant “delineated . . . what would be
compliant for [him] to enter the building to work,” and that at one point, Plaintiff informed
Bradley and Morales that “per [his] doctor[,] [he] was not to return to the building until the
situation had been remediated.” (Pl.’s Dep. Tr. 116, 118, 129–30.) However, Plaintiff also
testified that at the time he saw Dr. Grant in October 2015, and thus at the same time Defendant
received Dr. Grant’s letter, Plaintiff was unable to work at all.
[Q:] [I]in addition to telling you that you couldn’t enter the [h]igh [s]chool[,] did
Dr. Grant also tell you that you were restricted from working anywhere else?
[A:] At that time—that given time, yes.
[Q:] So because of your health condition[,] Dr. Grant told you at that time you
couldn’t work anywhere; correct?
[A:] At that time.
(Id. at 131–32.) Plaintiff also confirmed that at the time of his Claim in February 2016, it was
“still his understanding per Dr. Grant that [he was] unable to work in any capacity due to [his]
health conditions,” (id. at 132 (emphasis added)), and that the basis of his worker’s
compensation claim was that he was “disabled and unable to work,” (id. at 131). At one point,
although Plaintiff stated that Dr. Grant instructed him that he was disabled and unable to work
“[i]n that particular environment,” Plaintiff also conceded that he could not say that Dr. Grant

which stated that Plaintiff should “avoid returning to the school until it has been remediated . . .
and then re-evaluated.” (Oct. 23, 2015 Grant Letter.) However, the Court’s decision with
respect to Dr. Grant’s remediation and evaluation recommendations would apply equally to a
transfer recommendation by Dr. Grant.
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informed him “as a direct statement” that he was “able to work in other environments.” (Id. at
135 (emphasis added).) Indeed, Plaintiff has failed to establish that he was able to perform his
job, even with accommodation, before he began the resignation process in December 2016.
During his deposition, he testified:
[Q:] If you had prevailed in your Worker’s Compensation . . . would you have still
resigned?
[A:] I think given the fact that with the amelioration of the problem, if there was a
concession that there was a problem there in the environment . . . if we could have
worked out those conditions and I could have been well[,] I certainly would have
tried to work.
...
[Q:] At the time you resigned in January 2017[,] was it still your understanding that
Dr. Grant did not consider you well enough to go back to work?
[A:] . . . I don’t know how to answer that question from a professional point of
view. I think I have to say that the assessment was being made. She was giving
me protocols to make me better. I was getting better as time went by . . . . [I]t was
a very iffy time for me.
[Q:] In January 2017 . . . do you recall if Dr. Grant had informed you that your
treatment worked and that you[] [we]re good enough to go back to work at this
time, or were you still in the process of getting better with the hope of eventually
going back to work?
[A:] I think it was with the hope of getting better. But it was very clear to me that
I was at an impasse with the [s]chool [district] . . . .
(Pl.’s Dep. Tr. 142–45 (emphasis added).) Plaintiff’s testimony establishes that even if he had
hoped to return to Thornton with accommodation in late 2016 and early 2017, he could not do so
until he was “better.” Indeed, Plaintiff did not begin to work in a part-time substitute position in
a different school district until some time between September and December 2017,
approximately two years after he left Thornton. (Id. at 20.) To the extent that Plaintiff sought, or
would have sought, an indefinite period of leave from Thornton until his full recovery, such a
request is impermissible under the ADA, and his testimony that he was unable to work during
the relevant time period “preclud[es him] from establishing a prima facie case of disability

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discrimination under the ADA.” Sesay-Harrell v. N.Y.C. Dep’t of Homeless Servs., No. 12-CV925, 2013 WL 6244158, at *17 (S.D.N.Y. Dec. 2, 2013) (collecting cases); see also Sefovic v.
Mem’l Sloan Kettering Cancer Ctr., No. 15-CV-5792, 2017 WL 3668845, at *4–5 (S.D.N.Y.
Aug. 23, 2017) (finding the same when the plaintiff testified in a deposition that he had been
unable to return to work since he left his workplace); Ramos-Boyce v. Fordham Univ., 419 F.
Supp. 2d 469, 473–74 (S.D.N.Y. 2005) (determining that it was undisputed that until the date of
her discharge, the plaintiff was unable to do any kind of work because, inter alia, the plaintiff
admitted at her deposition that her doctor’s notes indicated that she was unable to work).
Even if Plaintiff had been able to work in some capacity during the period before his
resignation, Plaintiff has not met his burden of establishing the third step of the prima facie
case—that he could perform the essential functions of his position with reasonable
accommodations. “‘Essential functions’ are defined under EEOC regulations to mean the
‘fundamental’ duties to be performed in the position in question, but not functions that are
‘merely marginal.’” Shannon, 332 F.3d at 100 (citation omitted); accord 29 C.F.R.
§ 1630.2(n)(1). “A job function may be considered essential for any of several reasons,
including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform
that function;
(ii) The function may be essential because of the limited number of employees
available among whom the performance of that job function can be distributed;
and/or
(iii) The function may be highly specialized so that the incumbent in the position is
hired for his or her expertise or ability to perform the particular function.
29 C.F.R. § 1630.2(n)(2).
“In evaluating whether a particular job function is ‘essential,’ this Court considers”
several factors, including “the employer’s judgment, written job descriptions, the amount of time

35

spent on the job performing the function, the mention of the function in a collective bargaining
agreement, the work experience of past employees in the position, and the work experience of
current employees in similar positions.” Stevens v. Rite Aid Corp., 851 F.3d 224, 229 (2d Cir.
2017) (citing 29 C.F.R. § 1630.2(n)(3)), cert. denied 138 S. Ct. 359 (2017). Further, “[c]ourts
must conduct a fact-specific inquiry into both the employer’s description of a job and how the
job is actually performed in practice.” Id. (citation and quotation marks omitted). “No one
factor is dispositive, and the regulations themselves state that these examples are nonexhaustive.” Hunt-Watts v. Nassau Health Care Corp., 43 F. Supp. 3d 119, 128 (E.D.N.Y.
2014) (citing Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997)); see also Stevens,
851 F.3d at 229 (same); Rodal v. Anesthesia Grp. Of Onondaga, P.C., 369 F.3d 113, 120 (2d Cir.
2004) (“[U]ltimately, the question whether a task constitutes an essential function depends on the
totality of the circumstances.” (citation omitted)).
The record includes few, if any, descriptions of the essential functions of a music teacher
at Thornton from Defendant’s point of view, other than Bradley’s testimony that such teachers
were responsible for classes such as music appreciation and music theory. (Bradley Dep. Tr. 9–
10.) Plaintiff, however, provides several descriptions of his experience as a music teacher at
Thornton, explaining that he taught general music, which included the history of music, music
theory, and music appreciation, as well as certain instruments, such as keyboard, guitar,
percussion, and brass and woodwind, which he found he more challenging. (Pl.’s Dep. Tr. 9–
11.) Plaintiff also explained that he frequently played instruments to show students how to do
so, and agreed that it was “fundamental” to his position to be able to “demonstrate and lead by
example.” (Id. at 11.) With respect to the demands of the job, Plaintiff testified that he worked
full-time and taught five out of seven instructional periods per day. (Id. at 11–12.) It was

36

“required” that he arrive at school at 7:50 a.m., and he typically stayed until 5:00 or 6:00 p.m.,
but would sometimes stay as late as 8:00 or 9:00 p.m. if there were after-school performances.
(Id. at 14.) Plaintiff agreed that he had “obligations that required [him] to be at school either
after school . . .[,] in the evening, or [on] weekends.” (Id. at 12.) Although he would sometimes
stay later to help teach students instruments without pay, he also stayed after hours for school
performances. (Id. at 12–13.) Plaintiff agreed that a fundamental element of teaching was also
“the ability to . . . enter the building to teach in the building.” (Id. at 116.)
Once Plaintiff was cleared to teach as a substitute in late 2017, he testified that although
his assignment was to teach a full school day, as he did at Thornton, he could teach only “two[]
[or] three days a week based on how well [he] felt or what [he] thought [he] could be strong
enough to do.” (Id. at 20.) Indeed, Plaintiff confirmed that “[t]here were occasions when [he]
was substituting that [he] could not continue or [could] sometimes only work a certain number of
days a week,” (id. at 21), and that “[p]hysically[,] it was very arduous for [him]. . . . [E]ven as a
substitute teacher, there were days where [he] could[ not] finish the day,” (id. at 152–53).
Although Plaintiff stated that he “d[id] not know” whether there was a time between his
resignation and formal retirement where he believed that he was physically able to return to fulltime teaching, he also “th[ought]” that he did not apply for teaching positions during this time
because he had been “advised that [he was] not physically or medically able to do so,” and
because of “[his] state of . . . health being, [he] actually could[] [not]” apply for such jobs. (Id. at
153–54.) Instead, Plaintiff testified that he thought that “maybe [he] could [have taught] college
or something like that.” (Id. at 153.) 17 Such testimony suggests that even presently, it would be

17

Plaintiff also testified that although he applied to be a music teacher at the “Fieldstone
School” after his retirement, he was not hired for the position. (Pl.’s Dep. Tr. 152.) He stated, “I
think that my health was probably evident on some level that I could[ not] fulfill the rigors of the
37

difficult for Plaintiff to return to his previous position. See Whitfield v. Am. Storage and Transp.,
Inc., No. 12-CV-1622, 2014 WL 204705, at *8 (E.D.N.Y. Jan. 16, 2014) (finding that, based on
the plaintiff’s deposition testimony, his “physical condition appear[ed] to rule out any reasonable
accommodation that could permit him to complete the functions of his old position”), aff’d, 588
F. App’x 58 (2d Cir. 2014).
Plaintiff’s deposition testimony is supported—and not contradicted by—testimony at his
worker’s compensation hearings. During one hearing, Plaintiff testified that Dr. Grant’s opinion
was that he was “not to be exposed to toxins that had not been remediated in the correct manner
inside [Thornton],” and that at the time he saw Dr. Grant, “[s]he stated that given [Plaintiff’s]
current condition at that particular time, . . . [he] was not able to work at that time.” (Pl.’s Hr’g
Tr. DEF 324–25.) As of Plaintiff’s last visit to Dr. Grant before the hearing, she again stated that
Plaintiff was “unable to physically return to work[,] . . . because [his] immune system ha[d] been
. . . really challenged.” (Id.) Plaintiff’s deposition testimony further clarifies that he was “unable
to work in any capacity,” at the time of his Claim, not just unable to work at Thornton without
accommodation. (Pl.’s Dep. Tr. 131–32.)
As an attempt to raise a dispute of fact, Plaintiff cherry-picks portions of Dr. Grant’s
testimony in his 56.1 Statement to represent that Dr. Grant told him only that he could not work
in Thornton’s building. (See Pl.’s 56.1 ¶¶ 68, 81, 83.) Particularly when read in tandem with
Plaintiff’s deposition testimony, however, Dr. Grant’s testimony does not establish that Plaintiff
was qualified to work at Thornton, with or without accommodation, in late October 2015 or at
the time of the hearing. Dr. Grant testified that “until [Thornton] [wa]s proven to be free of

job.” (Id.) It is unclear from Plaintiff’s testimony whether this statement is his own assessment
of his inability to teach music, or whether it is his speculation as to the reason that he was not
hired.
38

hazardous molds, it[] [was] a medical risk” to Plaintiff, and that if testing for microtoxins and
“more extensive testing of the air systems” were completed, Grant “would be in agreement that
[Plaintiff] could be re-exposed to the building.” (Grant’s Hr’g Tr. DEF 297–99.) As cited by
Plaintiff, Dr. Grant further stated that Plaintiff could return to work in “another building with no
exposure . . . [a clean building].” (Id. at DEF 300.) Plaintiff argues that this testimony
establishes that he would have been able to work at the time of the hearing, as long as he was in a
clean or remediated building. Plaintiff fails to address, however, Dr. Grant’s testimony that
Plaintiff was also generally unable to work at the time of the hearing:
[Q:] [O]utside of the school environment, did you have an opinion as to his
ability—his physical ability to work, in relation to your diagnosis and observations?
[A:] . . . I don’t understand the question. . . physical ability to go back to school or
to go grocery shopping?
...
[Q:] [D]id the claimant have the ability . . . was he able to return to work without
restriction at that time, in your opinion?
[A:] . . . In my opinion, he should not return to that building. . . .
[Q:] [Y]ou felt the building was harmful to his condition. I’m talking more about
his condition. Did the actual condition prevent him from working? Was he
physically unable to work, in your opinion?
[A:] He was—yes.
[Q:] . . . [F]rom that time in October up until the present day, has that opinion
changed?
[A:] He has responded to therapy, so he’s better in many ways but . . . he’s a very
fragile patient. . . .
[Q:] So just for clarity, so then it is your opinion that as of now, he is still unable
to return to work?
[A:] Right.
(Id. at DEF 305–06.) Dr. Grant later conceded that Plaintiff could do “nontaxing sedentary work
in a safe environment,” such as his home, and would be able to sit in front of a computer or stuff
envelopes. (Id. at DEF 307.) However, she instructed, “[D]on’t take him away from a table, and
don’t expose him to anything.” (Id.) Thus, Dr. Grant’s testimony does not create an issue of

39

fact, and does not suggest that were Thornton to remediate or offer Plaintiff a position at a
different school, Plaintiff would be able to return to work in his previous position. 18
Despite relying on some of Dr. Grant’s testimony at the worker’s compensation hearing,
Plaintiff also argues that testimony from the hearing should not be considered as dispositive,
referring to Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999). This case, however, is
distinguishable from the one presently before the Court. In Cleveland, the Supreme Court
vacated summary judgment when the plaintiff had stated in an application to the Social Security
Administration (“SSA”) that she was “totally disabled” and unable to work but claimed in an
ADA case that she could work with reasonable accommodation. Id. at 799. The Court found
that because there was a “key contextual difference,” Parker v. Columbia Pictures Indus., 204
F.3d 326, 332 (2d Cir. 2000), between the two types of cases, the plaintiff was not automatically
barred from bringing a case under the ADA and instead should have the opportunity to provide
an “explanation of any apparent inconsistency with the necessary elements of an ADA claim,”
id. at 807; see also Parker, 204 F.3d at 334–35 (finding that the plaintiff had adequately
explained a contradiction between his ADA claim and his SSA application). In Cleveland and
Parker, however, the statements in SSA applications, and not ADA deposition testimony, were
at issue, and deposition testimony did not appear to be available to support, and further elaborate
on, the testimony given to another adjudicatory body.

18

Further supporting the Court’s finding is Dr. Friedman’s testimony that Plaintiff was
“very severely disabled” with “stage four congestive heart failure” and confirmation that Plaintiff
could not work. (Friedman’s Hr’g Tr. DEF 369.) When asked whether Plaintiff would be able
to work if he suffered from “the problems associated with the mold exposure alone,” Dr.
Friedman testified, “I’m sure he could do sedentary work. That would be—that’s all he can do.”
(Id. at DEF 370.)
40

Further, notwithstanding Plaintiff’s prior testimony and other evidence, Plaintiff now
maintains that Defendant is incorrect in asserting that Plaintiff was “unable to perform the
functions of the job,” and “[b]ecause the [] District never met [Plaintiff] or [his] representatives
concerning the request for accommodation from [his] doctor, the question of [his] ability to work
in the [] [D]istrict became cloudy.” (Pl. Decl. ¶¶ 2, 8; see also Pl.’s 56.1 ¶ 81 (stating that Dr.
Grant informed Plaintiff only that he could not work in Thornton’s building).) These statements
“contradict[] [Plaintiff’s] prior deposition testimony, and [are] insufficient to create a question of
fact.” Needle v. Alling & Cory, Inc., 88 F. Supp. 2d 100, 106 (W.D.N.Y. 2000) (collecting
cases); see also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572–
73 (2d Cir. 1991) (“The rule is well-settled in th[e] [Second] [C]ircuit that a party may not, in
order to defeat a summary judgment motion, create a material issue of fact by submitting an
affidavit disputing his own prior testimony.”). Thus, the Court will not consider these statements
to create an issue of material fact as to whether Plaintiff would have been able to return to work
in a building other than Thornton at the time of his absence.
Because Plaintiff was not a “qualified individual” at the time he provided Defendant with
Dr. Grant’s recommended accommodations, Defendant cannot be held liable for not engaging in
an interactive process with Plaintiff. “[A]n employer’s failure to engage in a sufficient
interactive process does not form the basis of a claim under the ADA . . . unless [the plaintiff]
also establishes that, at least with the aid of some identified accommodation, [he] was qualified
for the position at issue.” McBride, 583 F.3d at 101. Here, Plaintiff has failed to establish that
he was qualified for his position at Thornton. Thus, the Court grants Defendant’s Motion with
respect to Dr. Grant’s recommendations and Defendant’s engagement in an interactive process
with Plaintiff. See Sclafani v. PC Richard & Son, 668 F. Supp. 2d 423, 443 (E.D.N.Y. 2009)

41

(“[E]ven assuming . . . that [the] defendants caused the interactive process to fail, that by itself is
not enough to defeat [the] defendants’ motion for summary judgment . . . [b]ecause [the] plaintiff
has not shown that she was qualified for her job . . . even with some accommodation . . . .”).
2. Constructive Discharge
Finally, Defendant maintains that Plaintiff “has not identified a single statement or action
. . . that suggests a discriminatory animus against him.” (Def.’s Mem. 14–15.) Plaintiff’s claim
with respect to his resignation appears to be one for constructive discharge, as he alleges in the
Complaint that he was forced to resign from his position due to Defendant’s “alter[ation] of the
terms and conditions of his employment.” (Compl. ¶ 32.) “An employee is constructively
discharged when his employer, rather than discharging him directly, intentionally creates a work
atmosphere so intolerable that he is forced to quit involuntarily.” Terry v. Ashcroft, 336 F.3d
128, 151–52 (2d Cir. 2003) (citations omitted). “The inquiry is objective: Did working
conditions become so intolerable that a reasonable person in the employee’s position would have
felt compelled to resign?” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004) (citation
omitted); see also Pfizenmayer v. Hicksville Pub. Schs., 700 F. App’x 64, 65 (2d Cir. 2017)
(same) (citing Green v. Brennan, 136 S. Ct. 1769, 1776 (2016)). This “standard is demanding
and it will not be satisfied based on difficult or unpleasant working conditions or the plaintiff’s
preference to no longer work for [his] employer.” Collazo v. County of Suffolk, 163 F. Supp. 3d
27, 45 (E.D.N.Y. 2016) (citation and quotation marks omitted); see also Nicholls v. Philips
Semiconductor Mfg., 760 F. Supp. 2d 407, 416 (S.D.N.Y. 2011) (noting that the plaintiff’s
“burden is not an easy one to carry” and “success does not depend upon the plaintiff’s subjective
beliefs” (citations, alteration, and quotation marks omitted)).

42

However, because the Parties have not briefed the issue of constructive discharge, and
because the Court has already determined that Plaintiff has failed to establish that he is a
qualified individual under the ADA, "there is no need to resolve this issue at this juncture."

Petrone v. Hampton Bays Union Free Sch . Dist., No. 03-CV-4359, 2013 WL 3491057, at *27
(E.D.N.Y. July 10, 2013), ajf'd 568 F. App'x 5 (2d Cir. 2014).
III. Conclusion

For the foregoing reasons, the Court grants Defendant's Motion for Summary Judgment.
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No . 32), enter
judgment for Defendant, and close this case.
SO ORDERED.
DATED:

CJ_,

March
2020
White Plains, New York

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