Grant v. County of Erie et al

Filing 89

DECISION AND ORDER granting in part and denying in part 80 Motion for Summary Judgment. The case will be scheduled for trial on Plaintiff's ADA claims. Signed by Hon. Leslie G. Foschio on 5/18/2017. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________ 
LINDA GRANT,
DECISION
and
ORDER

Plaintiff,
v.
COUNTY OF ERIE, and
ERIE COUNTY YOUTH DETENTION SERVICES,

12-CV-00651F
(Consent)

Defendant.
_________________________________________

APPEARANCES:

SANDERS & SANDERS
Attorneys for Plaintiff
HARVEY P. SANDERS, of Counsel
401 Maryvale Drive
Cheektowaga, New York 14225
ALISA LUKASIEWICZ PLLC
Attorneys for Defendants
ALISA A. LUKASIEWICZ, of Counsel
1207 Delaware Ave., Suite 468
Buffalo, New York 14209
PHILLIPS LYTLE LLP
Attorneys for Defendants
AMANDA L. LOWE, of Counsel
One Canalside
125 Main Street
Buffalo, New York 14203-2887

JURISDICTION
On Mach 3, 2014, the parties to this action consented pursuant to 28 U.S.C. §
636(c) to proceed before the undersigned (Dkt. 39). The matter is presently before the
court on Defendants’ motion for summary judgment (Dkt. 80), filed October 2, 2015.

BACKGROUND
On July 10, 2012, Plaintiff commenced this action against Defendants alleging
employment discrimination and retaliation in violation of Title I of the Americans with
Disabilities Act of 1990 (“ADA), 42 U.S.C. § 12111 et seq., as amended by the ADA
Amendments Act of 2008 (“ADAAA”), 42 U.S.C. § 12101 et seq., the Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296. Defendants to this action
include Plaintiff’s former employer County of Erie, New York (“County”), and Erie
County Youth Defendant Services (“Youth Services”) (together, “Defendants”), for which
Plaintiff was employed most recently as a Youth Detention Worker (“YDW”). On
November 9, 2012, Defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the
Complaint for failure to state a claim. (Dkt. 11). In a Decision and Order filed January 2,
2013 (Dkt. 20) (“D&O”), District Judge William M. Skretny granted the motion to dismiss,
entering judgment in favor of Defendants on January 3, 2013 (Dkt. 21), and closing the
case. Grant v. County of Erie, 2013 WL 49707 (W.D.N.Y. Jan. 2, 2013). On February
4, 2013, Plaintiff appealed the dismissal (Dkt. 22), to the Second Circuit Court of
Appeals. In its mandate dated October 17, 2013 (Dkt. 25), the Second Circuit affirmed
the D&O as to the dismissal of the discrimination claim under the ADEA and the
retaliation claims under the ADA and the ADEA, but vacated the D&O as to the ADA
discrimination claim and all state law claims. Grant v. County of Erie, 542 Fed.Appx. 21,
24-25 (2d Cir. Oct. 17, 2013). In particular, the Second Circuit held the district court’s
reliance in dismissing the Complaint for failure to state a claim on one physician’s
statement questioning the wisdom of permitting Plaintiff to resume working as a YDW,
2 

in light of Plaintiff’s age and history of work-related injuries, given that the physician
nevertheless found Plaintiff was capable of performing the essential functions of the
YDW job. Id. at 23-24. In reinstating the state law claims, the Second Circuit held their
sua sponte dismissal by the district court for failure to file and serve a notice of claim
was in error because Plaintiff was denied notice and an opportunity to address the
issue. Id. at 24. On November 19, 2013, Defendants filed their answer (Dkt. 27).
On October 5, 2015, Defendants filed the instant motion seeking summary
judgment (Dkt. 80) (“Defendants’ Motion”), attaching the Memorandum of Law in
Support of Defendants’ Motion for Summary Judgment (Dkt. 80-1) (“Defendants’
Memorandum”), and the Statement of Undisputed Material Facts (Dkt. 80-2)
(“Defendants’ Statement of Facts”). Also filed in support of Defendants’ Motion was the
Amended Declaration of Alisa A. Lukasiewicz, Esq. (Dkt. 79) (“Lukasiewicz
Declaration”), attaching Defendants’ exhibits A through 0 (Dkts. 79-1 through 79-15)
(“Defendants’ Exh(s). __”).1 On November 9, 2015, Plaintiff filed the Declaration of
Linda Grant in Opposition to Defendants’ Summary Judgment Motion (Dkt. 85)
(“Plaintiff’s Declaration”), attaching exhibits 1 through 27 (Dkts. 85-1 through 85-27)
(“Plaintiff’s Exh(s). __”), and separately filing the Memorandum of Law in Opposition to
Defendants’ Summary Judgment Motion (Dkt. 86) (“Plaintiff’s Response”), and the
Statement of Facts in Opposition to Defendants’ Rule 56 Statement of Facts (Dkt. 87)
(“Plaintiff’s Statement of Facts”). On November 22, 2015, Defendants filed the
Declaration of Alisa A. Likasiewicz, Esq. (Dkt. 88) (“Lukasiewicz Declaration”), attaching
exhibits A through C (Dkts. 88-1 through 88-3) (“Defendants’ Reply Exh(s). __”), and the

1

Defendants initially filed their summary judgment motion and supporting papers on September 28, 2015
(Dkt. 78), but improperly electronic filing required the re-filing of some of the papers on September 29,
2015 (Dkt. 79), and the rest of the papers on October 2, 2015 (Dkt. 80).

3 

Memorandum of Law in Further Support of Defendants’ Motion for Summary Judgment
(Dkt. 88-4) (“Defendants’ Reply”). Oral argument was deemed unnecessary.
Based on the following, Defendants’ Motion is DENIED in part and GRANTED in
part.
FACTS2
Plaintiff Linda Grant (“Plaintiff” or “Grant”), commenced working for Defendants
County of Erie (“the County”), and Erie County Youth Detention Services (“Youth
Services”) (together, “Defendants”), in 1983, and was last employed with Youth
Services as a Youth Detention Worker (“YDW”), at the Youth Detention Center
(“Detention Center” or “the facility”)). The Detention Center houses both male and
female juvenile delinquents, juvenile offenders and, until 2008, children in need of
supervision. Residents of the Detention Center ranged between 8 and 18 years of age.
At all times relevant to this action, Plaintiff’s supervisor at the Detention Center was
Donald Watkins (“Watkins”), who held the highest employment rank at the Detention
Center.
As a YDW, Plaintiff was required to transport residents within the facility to and
from classes, activities, and meals, and to escort residents to off-site locations such as
to Family Court appearances. Detention Center residents were housed in separate
rooms located within three different “pods” with up to 20 children in each pod. Each pod
was designated for the various detention groups, e.g., male juvenile offenders in one
pod, and male juvenile delinquents in another pod. There were three YDWs assigned
to each pod for any given YDW work shift. Because physical altercations between two

2

Taken from the pleadings and motion papers filed in this action.

4 

children or between a child and a staff member occasionally occurred, and children
sometimes threatened to harm themselves or others, YDWs were trained as to various
techniques to subdue unruly children. If an altercation or incident required physical
intervention by YDWs, however, YDWs were not permitted to physically intervene
unless there was sufficient staff available to safely do so. Accordingly, if a fight broke
out, or if a child threatened harm, all available staff would be called to intervene and
generally within moments of the request staff would arrive from other parts of the
Detention Center including, inter alia, from other pods, the nurses’ station, and
administration, to assist with physically restraining the combative resident. All YDWs
received training on proper restraint techniques prior to commencing employment at the
Detention Center and Plaintiff had received training to instruct other YDWs on proper
restrained techniques. Plaintiff estimates that at most, she was required to physically
restrain a resident once a month. Plaintiff’s Declaration ¶ 69.
Twice during her tenure at the Detention Center, Plaintiff injured her nondominant left hand3 while restraining a child, with the first injury occurring in 2005 (“the
earlier injury”), when Plaintiff was assisting with a “two-man takedown” of a combative
resident who was refusing to comply with Detention Center orders. Plaintiff’s Dep. Tr.4
at 61-64. With regard to the earlier injury, Plaintiff maintains she was not injured by the
resident she was assisting in restraining but, rather, sustained the earlier injury when

3

While working as a YDW, Plaintiff sustained other work-related injuries to her hands and wrists requiring
surgical intervention and physical therapy resulting in Plaintiff’s temporary disability from work for which
Plaintiff received Worker’s Compensation, including right wrist and thumb injuries sustained on
September 13, 2006, while restraining a disrespectful youth (Dkt. 79-13 at 16), fracture of the right
scaphoid (bone in wrist) in 2007, id., and DeQuervain’s tensynovitis of the right hand (affecting tendons
on thumb side of the wrist), in 2007, for which first dorsal compartment release of the right wrist was
performed on August 22, 2007. Id. at 16-17.
4
References to “Plaintiff’s Dep. Tr.” are to the page of the transcript of Plaintiff’s deposition, filed as
Plaintiff’s Ehx. 1.

5 

she hit her left hand on a table in the process of “going down to the floor,” fracturing the
3rd metacarpal bone in her left hand. Id. at 64. The injury was not painful and Plaintiff,
who was able to restrain the combative resident despite the injury, did not realize she
had broken a bone until after the resident was restrained and Plaintiff noticed her hand
was swollen. Id. at 65. Although Plaintiff underwent surgery for the broken bone, and
received physical therapy, the earlier injury resulted in some permanent damage to
Plaintiff’s left hand, with Plaintiff unable to completely close her left hand to make a fist,
yet Plaintiff was cleared to return to work and was able to perform all her job duties as a
YDW.
The second, more recent injury occurred on February 17, 20085 (“the recent
injury”), when Plaintiff and other YDWs were performing a controlled takedown while
restraining a combative child during which Plaintiff fractured the 5th metacarpal bone in
her left hand. Plaintiff did not realize she had injured her left hand until after the child
was restrained, and finished working the rest of her shift before having her hand
checked at the hospital where it was determined Plaintiff had broken her hand. Plaintiff
underwent surgical reduction and K-wire fixation (pin) which was removed on August
15, 2008, when the fracture had healed. Treatment for Plaintiff’s recent injury was
provided by Dale R. Wheeler, M.D. (“Dr. Wheeler”), of the Hand Center of Western New
York (“the Hand Center”). Plaintiff also received extensive physical therapy after the
surgery for the injury. Following treatment for the recent injury, Plaintiff was able to
close her left hand to the same extent as after treatment for the earlier injury. While out

5

Plaintiff’s recent injury is variably referred to as having occurred on February 7, 2008, and February 17,
2008, with no explanation for the discrepancy which is largely insignificant to resolution of Defendants’
summary judgment motion.

6 

from work on disability for the recent injury, Plaintiff received Workers’ Compensation
benefits from February 17, 2008 through November 17, 2008.
At the request of the Workers’ Compensation Administration, on November 4,
2008, Plaintiff, whose Workers’ Compensation benefits were about to expire, underwent
a Fitness for Duty examination by Robert Durning, M.D. (“Dr. Durning”), with Superior
Medical Consultants (“SMC”), the County’s third-party Workers’ Compensation
independent medical examiners. Dr. Durning determined Plaintiff was no longer
disabled by the recent injury and could return to “unrestricted work activity with the
injured left hand.” Dr. Durning Report.6 On November 17, 2008, Plaintiff was cleared to
return to work with full duties by Dr. Wheeler, Dr. Wheeler Report,7 but did not then do
so.8
By letter to Plaintiff dated November 25, 2008, Erie County Personnel Supervisor
Joseph P. Dobies (“Dobies”) (“Dobies’s Letter”),9 advised that Plaintiff’s failure to return
to work after Dr. Wheeler cleared Plaintiff to do so without any restrictions rendered
Plaintiff in violation of Erie County Work Rule Group A, Number 12 and subject to
discipline including immediate discharge if Plaintiff did not return to work by December
1, 2008. Plaintiff was also advised to contact Emily Kaznica (“Kaznica”), Executive
Director of Erie County Office for the Disabled, if she believed she was qualified for a
reasonable accommodation. Id.
On December 1, 2008, Plaintiff submitted to Watkins, her supervisor, a form titled
Requests for Reasonable Accommodations under the ADA (“Accommodations

6

Plaintiff’s Exh. 8; Defendants’ Exh. M at 11-12.
Plaintiff’s Exh. 9; Defendants’ Exh. M at 6.
8
The record is devoid of any explanation for Plaintiff’s failure to return to work after being cleared to do so
by Dr. Wheeler.
9
Defendants’ Exh. O at 2.
7

7 

Request”),10 stating she was requesting as an accommodation of her “hand injury” an
additional leave of absence until January 31, 2009, the date to which Plaintiff’s primary
care physician (“PCP”), Dana Drummond, M.D. (“Dr. Drummond”), had continued
Plaintiff as temporarily totally disabled. In making the Accommodations Request,
Plaintiff indicated that although her hand surgeon, Dr. Wheeler, had released Plaintiff to
return to work on November 17, 2008, Plaintiff’s PCP recommended Plaintiff remain off
work until January 31, 2008. Plaintiff is described by Watkins as having “elected to stay
out longer.” In a letter to Plaintiff dated December 1, 2008 (“December 1, 2008
Letter”),11 Kaznica memorialized her conversation with Plaintiff earlier that day in which
Plaintiff inquired about a reasonable accommodation under the ADA and NYSHRL,
requesting Plaintiff provide medical documentation to assist Defendants with
determining whether an accommodation could be provided. Enclosed with the
December 1, 2008 Letter was the Physician Medical Certification for Request for
Reasonable Accommodation forms (“Physician Certification”), to be completed by
Plaintiff’s physicians and returned by December 21, 2008.
On a Physician Certification completed on December 3, 2008 by Dr. Drummond,
Plaintiff’s PCP (“Dr. Drummond’s Certification”),12 Plaintiff was not cleared to return to
work but, instead, was reported as having limited use of her left hand, was “presently
disabled,” the duration for such disability was “undetermined,” and no accommodations
were recommended. Dr. Drummond separately stated Plaintiff was to remain off work
through December 19, 2008.13 On a separate Physician Certification completed on

10

Defendants’ Exh. O at 4-5.
Defendants’ Exh. O at 3.
12
Plaintiff’s Exh. 19; Defendants’ Exh. M at 2-3.
13
Defendants’ Exh. M at 7.
11

8 

December 3, 2008, by Dr. Wheeler (“Dr. Wheeler’s Certification”),14 Plaintiff was
reported as having a limitation with fine grasp with her left hand resulting from her left
hand fracture, but although such limitation was considered permanent, Plaintiff was not
limited in her ability to work and could perform her job without any work restrictions,
referencing his November 17, 2008 report.
By letter to Plaintiff dated December 9, 2008 (“December 9, 2008 Letter”),15
Kaznica advised Plaintiff that based on Dr. Drummond’s Certification, Dr. Wheeler’s
Certification, and the Request for Accommodation, the County was unable to provide
any reasonable accommodation that would allow Plaintiff to perform the essential
functions of her YDW position. As such, Plaintiff’s case regarding her accommodation
request was to be closed. Enclosed with the December 9, 2008 Letter was another
Physician’s Certification to be completed by Plaintiff’s physician and returned to the
Office for the Disabled if Plaintiff’s medical condition improved.
On December 18, 2008, Dr. Drummond examined Plaintiff and updated Plaintiff’s
disability status, indicating Plaintiff remained totally temporarily disabled through
January 31, 2009.16
On January 15, 2009, Watkins recommended Plaintiff’s Accommodations
Request be approved, but the Accommodations Request was denied that same day by
the County’s Appointing Officer.17 By letter to Plaintiff dated January 16, 2009 (“January
16, 2009 Letter”),18 Joseph P. Dobies (“Dobies”), Erie County Personnel Supervisor,

14

Defendants’ Exh. M. at 4-5.
Defendants’ Exh. O at 6.
16
Defendants’ Exh. M at 8.
17
The Appointing Officer’s signature on the Accommodations Request is illegible and the record does not
otherwise identify this person.
18
Defendants’ Exh. O at 7.
15

9 

advised Plaintiff that her leave of absence without pay, pursuant to which Plaintiff had
been out of work since February 10, 2008, was set to expire on February 10, 2009,
according to Rule XVIII of the Rules for the Classified Civil Service of the County of
Erie, which limits leave of absence without pay to one year. Plaintiff was further advised
that if she required additional time off, Plaintiff should contact Kaznica who would
determine whether such additional time off would be considered a reasonable
accommodation under the ADA, but that Plaintiff’s failure to return to work would result
in her termination from her YDW position, following which Plaintiff could request a
reinstatement when she became physically able to return to work.
On February 12, 2009, Dr. Drummond completed another Physician’s
Certification form (“Dr. Drummond’s Second Certification”),19 indicating Plaintiff
remained unable to close her left hand to make a fist, that Plaintiff was limited in her
ability to work insofar as Plaintiff could not lift, grasp or carry, or restrain or transfer
residents, and that the limitations were expected to continue for an indefinite period of
time, but that Plaintiff could work with accommodations, including work limited to writing,
filing, answering the telephone, and driving with her right hand.
By letter to Plaintiff dated February 23, 2009 (“Termination Letter”),20 Kaznica
advised she was in receipt of Dr. Drummond’s Second Certification which established
Plaintiff was unable to perform the essential functions of the YDW job with any
reasonable accommodation. Kaznica also observed Plaintiff had been on leave without
pay since February 18, 2009. Because granting Plaintiff additional leave without pay for
an indefinite period of time would not be reasonable, Plaintiff would not be granted a

19
20

Defendants’ Exh. M. at 9-10.
Defendants’ Exh. O at 8.

10 

reasonable accommodation and her case was closed. Plaintiff’s employment with the
County was terminated on February 24, 2009.
On October 8, 2009, Plaintiff was examined by Dr. Drummond who cleared
Plaintiff to return to work without any restrictions, and Plaintiff provided the report to the
County. Despite being cleared to return to work by her PCP, the County required
Plaintiff to undergo a Fitness for Duty evaluation performed on December 9, 2009, by
orthopedic surgeon Marc Bergeron, M.D. (“Dr. Bergeron”), with SMC, Defendants’
Workers’ Compensation medical consultants. Dr. Bergeron reported that “[t]he main
concern of the claimant is persistent symptoms of the left hand.” Dr. Bergeron’s
Report21 at 1. Dr. Bergeron recounted the history of Plaintiff’s work-related injuries as
multiple injuries to her wrists and hands including a non-displaced fracture of her right
scaphoid, Dequervain’s tenosynovitis of the right wrist treated with a surgical procedure,
fracture of the 3rd and then 5th metacarpal of her left hand, noting the last incurred injury
to be the one sustained in February 2008, following which Plaintiff had not returned to
work. Id. According to Dr. Bergeron, despite surgery and “extensive physical therapy,”
Plaintiff’s lingering left hand problems prevented Plaintiff’s return to her YDW job, with
Plaintiff reportedly not confident she would be able to “immobilize unruly youth” who
could be the size of adults, such that Plaintiff would be unable to perform the most
demanding part of her work i.e., protecting herself and others. Id. Plaintiff also reported
feeling there was a risk of reinjuring her left wrist and hand. Id. Although Dr.
Bergeron’s review of the YDW job description established Plaintiff was required to
maintain order and discipline, enforce rules and regulations, and to be “physically
capable of performing the essential functions of the position without a reasonable

21

Defendants’ Exh. M at 14-19.

11 

accommodation,” there was “no mention of actually how physically demanding the job
is.” Id. at 3. Dr. Bergeron reviewed more than 200 pages of Plaintiff’s medical history,
id. at 3-5, and, based on his medical history review and physical examination of Plaintiff,
diagnosed Plaintiff with healed right scaphoid fracture, status post Dequervain’s
release, right wrist with good results, and status post open reduction and total fixation,
left hand third metacarpal fracture and treatment of fifth metacarpal fracture for which
the last surgical procedure was more than one year ago. Id. at 5. Dr. Bergeron found
Plaintiff’s left grip strength at only 50% of her right grip strength. Id. Addressing
whether Plaintiff was fit for duty, Dr. Bergeron wrote
This is obviously difficult to answer owing to the nature of her work. The most
demanding part is to be able to restrain youth that can be large in stature.
Purely, a mechanical point of view, from an orthopedic stand point, it is my view
that she could return to her regular work, she is right handed; she would be able
to defend herself.
Whether this is reasonable, at her age, there are many other factors that need to
be included. She is obviously at increased risk of significant injury with any
restraint maneuver. That alone, in my opinion, would preclude her from doing
that type of work at age 59 and with a history of multiple problems with her wrists
and hands, and 3 fractures. Thus, overall it is my opinion that it is not
appropriate for her to return her to full duty without restriction at [sic] the type of
work where she would have to restrain physically strong people. The risk of reinjury, in my opinion, is unduly high. Otherwise, it is my opinion there is very little
disability left from the multiple injuries, and that she has overall good function of
her right and left upper extremities except for slightly decreased range of motion
of the digits and wrists on the left, and some weakness.
It is my opinion that the level of disability, to give a point of reference, would be
best stated at [sic] permanent and in between minimal and mild based on this
examination.
Id.
Although Dr. Bergeron references the physical requirements of Plaintiff’s YDW job,
Plaintiff denies having provided Dr. Bergeron with the job description such that Plaintiff

12 

found “curious” Dr. Bergeron’s concern over the physical demands of the YDW position.
Plaintiff’s Declaration ¶¶ 109-14.
By letter dated February 19, 2010 (“February 19, 2010 Letter”),22 Susan V.
Sizemore (“Sizemore”), Executive Director of Erie County Office for the Disabled23
advised Plaintiff that based on Dr. Bergeron’s Report and the fact that Plaintiff had
separated from service, no reasonable accommodation was warranted and Plaintiff’s
case would remain closed.
On July 16, 2010, Plaintiff filed an administrative complaint (“Administrative
Complaint”),24 with the New York State Division of Human Rights and the Equal
Employment Opportunity Commission (“EEOC”), alleging employment discrimination
based on age and perceived disability under the ADA, the ADEA, and NYSHRL,
asserting that she had “promptly and effectively returned to work” following each of her
previous work-related injuries, but that although it had “been nearly two years” since she
had been cleared by her physicians as physically able to return to work with no
restrictions limiting her ability to work as a YDW with the County, she had not been
allowed to do so. On June 28, 2010, the EEOC issued Plaintiff a Notice of Right to Sue
(“Right to Sue Notice”).25 This action followed.

22

Plaintiff’s Exh. 12.
Sizemore became the Executive Director of Erie County Office for the Disabled following Kaznica’s
retirement from the position.
24
Defendants’ Exh. B at 2-3, and Complaint Exh. A.
25
Defendants’ Exh. B at 4-5; Complaint Exh. B.
23

13 

DISCUSSION
1.

Summary Judgment
Summary judgment of a claim or defense will be granted when a moving party

demonstrates that there are no genuine issues as to any material fact and that a moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-51 (1986); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003). The court is required to construe the evidence in the light most favorable to the
non-moving party. Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party
moving for summary judgment bears the burden of establishing the nonexistence of any
genuine issue of material fact and if there is any evidence in the record based upon any
source from which a reasonable inference in the non-moving party's favor may be
drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322;
see Anderson, 477 U.S. at 247-48 (“summary judgment will not lie if the dispute about a
material fact is "genuine," that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party”). “A fact is material if it ‘might affect the
outcome of the suit under governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35
(2d Cir. 2008) (quoting Anderson, 477 U.S. at 248).
“[T]he evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions.” Brady v. Town of
Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary
judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit
a reasonable juror to return a verdict in his or her favor on’” an essential element of a

14 

claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379
(2d Cir. 1992)). Once a party moving for summary judgment has made a properly
supported showing of the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence that
would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created
solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’
issues for trial.” Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.
1996). “An issue of fact is genuine and material if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Cross Commerce
Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016) (citing SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133,137 (2d Cir. 2009)).
In the instant case, Plaintiff specifically claims that Defendants, in violation of the
ADA, the ADEA, and NYSHRL, discriminated against Plaintiff with regard to her
employment, and also retaliated against Plaintiff for complaining about the alleged
employment discrimination. Although Judge Skretny, in the D&O, dismissed all claims
for relief for failure to state a claim, all claims but those alleging retaliation were
reinstated by the Second Circuit. Defendants now move for summary judgment on the
reinstated employment discrimination claims asserted under the ADA, the ADEA, and
NYSHRL.
In support of summary judgment, Defendants argue Plaintiff cannot establish a
prima facie case of employment discrimination under the ADA, Defendants’

15 

Memorandum at 5-11; the termination of Plaintiff’s employment with the County was for
the legitimate, non-discriminatory reason that Plaintiff’s injured left hand rendered
Plaintiff unable to defend herself and co-workers from unruly residents of the Detention
Center, which is an essential function of the YDW job, id. at 11-12; Plaintiff’s failure to
timely file a notice of claim pursuant to N.Y. County Law § 52 requires dismissal of all
claims under the NYSHRL, id. at 12; and Plaintiff has failed to establish the elements of
an age discrimination claim under the ADEA. Id. at 12-13. In opposing summary
judgment, Plaintiff argues she has established a prima facie case of employment
discrimination under the ADA insofar as Defendants regarded Plaintiff as being disabled
in performing the major life activity of working, Plaintiff’s Response at 5-17; Defendants
chose not to allow Plaintiff to return to work because Defendants did not want to be
required to accommodate Plaintiff’s disability, id. at 17-20; and Defendants have not
moved for summary judgment with regard to Plaintiff’s failure to accommodate claim
because Defendants failed to engage in the interactive process as required. Id. at 2125. In further support of summary judgment, Defendants reiterated that even assuming,
arguendo, Plaintiff could establish a prima facie case of discrimination under the ADA,
Plaintiff’s employment was terminated for a legitimate, nondiscriminatory reason, i.e.,
Plaintiff’s “compromised” condition presented a safety threat to Plaintiff and others for
which no accommodation would be reasonable, Defendants’ Reply at 2-6; the County
did not discriminate in determining Plaintiff could not perform the essential functions of
her YDW job, id. at 6-9, the County’s actions complied with applicable County policy
and all relevant legal requirements, id. at 9-10; all state law claims must be dismissed
for failure to timely serve a notice of claim, id. at 10; and Plaintiff’s failure to raise any

16 

issue of material fact suggesting her employment was terminated because of her age
requires dismissal of the ADEA claim. Id.
2.

ADA
“The ADA prohibits discrimination against a ‘qualified individual on the basis of

disability’ in the ‘terms, conditions, and privileges of employment.’” Kinneary v. City of
New York, 601 F.3d 151, 155 (2d Cir. 2010) (quoting 42 U.S.C. § 12112(a)). Insofar as
the ADA was amended by the ADAAA, the ADAAA is not to be retroactively applied to
conduct preceding its effective date of January 1, 2009. Price v. City of New York, 558
Fed.Appx. 119, 121 (2d Cir. Mar. 14, 2014) (declining to apply “substantially limits”
standard under ADAAA to conduct occurring in 2008 “[b]ecause the ADAAA was not
retroactively applicable . . . .”); Ragusa v. Malverne Union Free School Dist., 381
Fed.Appx. 85, 87 n. 2 (2d Cir. June 21, 2010) (applying the version of the ADA in effect
during the time at issue, which ended with the plaintiff’s termination, because the
ADAAA does not retroactively apply, and citing cases); Young v. Precision Metal
Products, Inc., 599 F.Supp.2d 216, 223 (D.Conn. 2009).
The same three-part burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) (“McDonnell-Douglas”), used to analyze
discrimination claims under Title VII is used to analyze discrimination claims under the
ADA. Kovaco v. Rockbestos-Surprenant Cable Corporation, 834 F.3d 128, 136 (2d Cir.
2016) (analyzing employment discrimination claims under, inter alia, the ADA and Title
VII “using the now-familiar burden-shifting framework established by the Supreme Court
in McDonnell Douglas. . . .”). In particular, the plaintiff must first establish a prima facie
case of employment discrimination based on a disability. Id. Upon meeting this de

17 

minimus burden of establishing a prima facie case of employment discrimination,
Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310, 316-17 (2d Cir. 1999)
(citing Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)), the
burden shifts to Defendant to offer a legitimate, non-discriminatory reason for the
challenged actions. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (citing
McDonnell Douglas Corp., 411 U.S. at 802). Once Defendant has asserted a neutral
reason for the alleged discriminatory action, “the inference of discrimination raised by
the prima facie case then drops out and the plaintiff must prove by a preponderance of
the evidence that the employer’s proffered reason is merely a pretext for discrimination.”
Brennan, 192 F.3d at 317 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08
(1993)). See also Bucalo v. Shelter Island Union Free School District, 691 F.3d 119,
129 (2d Cir. 2012) (“If the defendant satisfies its burden of production, then ‘the
presumption raised by the prima facie case is rebutted and drops from the case.”
(internal quotation marks and citation omitted)), and Terry, 336 F.3d at 138 (“‘to defeat
summary judgment, the plaintiff’s admissible evidence must show circumstances that
would be sufficient to permit a rational finder of fact to infer that the defendant’s
employment decision was more likely than not based in whole or in part on
discrimination.’” (citing Stern v. Trustees of Columbia, 131 F.3d 305, 312 (2d Cir.
1997))). “At the final stage, the plaintiff then has ‘the opportunity to demonstrate that
the proffered reason was not the true reason for the employment decision’ – a burden
that ‘merges with the ultimate burden of persuading the court that she has been the
victim of intentional discrimination.’” Bucalo, 691 F.3d at 129 (quoting Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248 256 (1981)).

18 

A.

Prima Facie Case

To establish a prima facie case of employment discrimination under the ADA, “a
plaintiff must prove that: ‘(1) the defendant is covered by the ADA; (2) plaintiff suffers
from or is regarded as suffering from a disability within the meaning of the ADA; (3)
plaintiff was qualified to perform the essential functions of the job, with or without
reasonable accommodation; and (4) plaintiff suffered an adverse employment action
because of his disability or perceived disability.’” Kinneary, 601 F.3d at 155-56 (quoting
Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)). In the instant case,
the first element, i.e., that Defendants are covered by the ADA, is not disputed, nor is
the termination of Plaintiff from her YDW position challenged as anything other than an
adverse employment action. Accordingly, what remains in dispute is the second
element, i.e., whether Plaintiff was disabled or perceived as disabled within the meaning
of the ADA, as well as the third element, to wit, whether Plaintiff could perform the
essential functions of her YDW position with a reasonable accommodation which
Defendants failed to provide.
1.

Disabled under the ADA

The ADA only protects against employment discrimination of a “qualified
individual with a disability,” 42 U.S.C. § 12112(a), defined as “an individual with a
disability 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 McBride, 583 F.3d at 96 (discussing substantive standard for an ADA
claim). As relevant to the instant case, “disability” is defined under the ADA as
(A) a physical or mental impairment that substantially limits one or more major
life activities of such individual;
19 

(B) a record of such impairment; or
(C) being regarded as having such an impairment . . . .
42 U.S.C. § 12102(1).
In the instant case, Plaintiff claims Defendants discriminated against her with
regard to her employment in two ways including failing to accommodate or to engage in
the interactive process while Plaintiff was partially disabled by the February 17, 2008
injury to her left hand, Plaintiff’s Response at 2, and by continuing to regard Plaintiff as
disabled after Plaintiff received medical clearance from her PCP to return to work on
October 8, 2009. Id. Although Plaintiff has conceded that her claims are limited to acts
occurring fewer than 300 days prior to filing her Administrative Complaint on July 16,
2010, i.e., September 19, 2009, id. at 2, for the approximately three week period
between September 19, 2009 and October 8, 2009, the date Plaintiff’s primary care
physician, Dr. Drummond, cleared Plaintiff to return to work without any restrictions,
Plaintiff’s claim that she was able to perform the essential functions of her YDW position
with a reasonable accommodation, including either an extended period of leave without
pay until Plaintiff fully recovered, or a temporary assignment to a light duty position, the
request for which Defendants denied, remains temporally viable. See Hoffman v.
Williamsville School Dist., 443 Fed.Appx. 647, 649-50 (2d Cir. Oct. 31, 2011) (affirming
district court’s dismissal of ADA claim for failure to accommodate insofar as claim was
filed more than 300 days after the accommodation was denied).
a.

Physical Impairment

Plaintiff argues that between September 19, 2009 and October 8, 2009, when
Plaintiff was deemed by Dr. Drummond disabled in her ability to work in a job requiring
physical activity involving her hands and wrists, Plaintiff requested a temporary
20 

assignment to a position which required such tasks as writing, filing, answering
telephones, and driving, but Defendants refused the request without ever meeting with
Plaintiff. Plaintiff’s Response at 21-22. Plaintiff further maintain Defendants could have
created a YDW position that did not require the need to physically restrain Detention
Center residents, Plaintiff’s only job restriction at that time, yet Defendants again failed
to even speak with Plaintiff about the request. Id. at 22.
It is undisputed that Plaintiff sustained a hand injury in February 2008, and that
following the injury Plaintiff has had limited use of her left hand, including an inability to
fully close her left hand into a fist, or to grasp objects.26 The ADA’s definition of a
“qualified individual” as “one who, ‘with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual holds or
desires,’” Stevens v. Rite Aid Corporation, 851 F.3d 224, 229 (2d Cir. 2017) (quoting 42
U.S.C. § 12111(8)), means that “employers may not discriminate against people with
disabilities that do not prevent job performance, but when a disability renders a person
unable to perform the essential functions of the job, that disability renders him or her
unqualified.” Id. As such, “one of the elements of a claim under the ADA is that an
employee was ‘qualified to perform the essential functions of his job, with or without
reasonable accommodation.’” Id. (quoting Sista v. CDC Ixix N. Am., Inc., 445 F.3d 161,
169 (2d Cir. 2006)). Accordingly, the first inquiry on Defendants’ Motion is whether the
ability to restrain unruly Detention Center residents – the only job function Plaintiff

26

Plaintiff maintains, Plaintiff’s Response at 8; Plaintiff’s Declaration ¶¶ 87-91 , and Defendants do not
dispute, that Plaintiff has been unable to fully close her left hand to make a fist since her earlier injury in
2005, such that despite the lingering mild and permanent impairment, Plaintiff’s left hand was in the same
physical condition as it was immediately preceding the February 2008 injury.

21 

remained unable to perform between September 19, 2009, and October 8, 2009 – was
an essential function of Plaintiff’s YDW position.
“In evaluating whether a particular job function is ‘essential,’ this Court considers
‘the employer’s judgment, written job descriptions, the amount of time 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, 851 F.3d 229 (quoting
McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (additional citation
omitted)). “Courts ‘must give considerable deference to an employer’s judgment
regarding what functions are essential for service in a particular position,’” id. (quoting
Shannon v. New York City Transit Authority, 332 F.3d 95, 100 (2d Cir. 2003)), with no
single listed factor dispositive. Id. (citing Stone v. City of Mount Vernon, 118 F.3d 92,
97 (2d Cir. 1997)). Furthermore, the determination of whether a job function is essential
is a question of fact determined based on “‘both the employer’s description of a job and
how the job is actually performed in practice.’” Id. (quoting McMillan, 711 F.3d at 126).
In the instant case, there exists a material issue of fact as to whether the ability to
restrain unruly youths residing at the Detention Center was an essential function of
Plaintiff’s YDW position.
In particular, Plaintiff submitted in support of summary judgment a copy of the job
description for a Youth Detention Worker (“Job Description”),27 which lists the “Typical
Work Activities” as including, inter alia, that a YDW “[m]aintains order and discipline and
enforces rules and regulations of Secure and Non-Secure facilities.” Job Description at
1. Included among “Full Performance Knowledges [sic], Skills, Abilities and Personal

27

Plaintiff’s Exh. 25.

22 

Characteristics” is being “physically capable of performing the essential functions of the
position with or without reasonable accommodation,” id., and “physical condition
commensurate with the demands of the position.” Id. at 2. Significantly, nowhere within
the Job Description is the ability to physically restrain residents of the Detention Center
unequivocally stated. This is consistent with Plaintiff’s explanation that YDWs were not
permitted to physically restrain Detention Center residents without assistance from other
Detention Center employees, which always arrived within a matter of seconds in
response to a call requesting assistance through an intercom system and walkie-talkies
carried by each YDW to ensure adequate communication. Plaintiff’s Declaration ¶¶ 4958. According to Plaintiff, although all YWDs were trained in restraint techniques, the
Detention Center residents always respected Plaintiff, who was never attacked by a
resident, and Plaintiff had no problems maintaining order and discipline with the
residents. Id. ¶¶ 69-65. Plaintiff explains that she did not sustain her hand injuries upon
being attacked by any resident but, rather, the injuries were indirectly sustained when
she hit her hand on furniture or the floor while assisting with take-downs initiated by
other YDWs. Id. ¶¶ 73, 82. Furthermore, in responding to Plaintiff’s Requests for
Admissions,28 Defendants admitted that another YDW, Jeanette Calendar (“Calendar”),
was, on two occasions, specifically from December 31, 2010 to February 18, 2011, and
again from August 27, 2012 to October 1, 2012, provided with a reasonable
accommodation in the form of a temporary light duty position which did not require
Calendar to restrain unruly residents. Requests for Admissions, Request 5.
In contrast to Plaintiff’s assertions, Plaintiff’s supervisor, Watkins, explains that
based on his personal knowledge as the Detention Center’s supervisor from 1991 until

28

Plaintiff’s Exh. 14.

23 

his retirement in 2014, “the need to restrain the youths residing at the County [Youth
Detention] Facility in the event of an episode is without a doubt an essential part of the
job.” Watkins Declaration29 ¶¶ 1, 3. Watkins continues that “[m]aintaining discipline and
order at the facility is key to ensure the safety of the employees and the children. This
is the most significant component to the job duties of this title. The ability to not perform
adequately presents a direct threat to safety.” Id. ¶ 3 (italics added). Watkins further
explains that situations occur in which a YDW is required to perform a restraint by
herself, id. ¶ 7, and even when assisted by other YDWs, the performance of a restraint
“requires a certain level of physical ability.” Id. ¶ 8. As such, based on more than 30
years of experience with the Youth Detention Facility, Watkins maintains that
“restraining is an essential function of the job. Plaintiff’s declaration inaccurately
describes the frequency that the need to maintain order occurs.” Id. Watkins also
references Plaintiff’s assertion that YDWs were not permitted to physically restrain
Detention Center residents without assistance from other Detention Center employees,
which always arrived within a matter of seconds in response to a call requesting
assistance, asserting that although there were times when the residents were better
behaved, “the ability to restrain was always a constant.” Id. ¶ 9 (citing Plaintiff’s
Declaration ¶¶ 49-69). The contrasting descriptions of the YDW position given by
Plaintiff and Watkins, especially with regard to the need to restrain unruly residents
using both hands of a YDW, and in light of the absence of such requirement in the Job
Description and that Defendants temporarily exempted at least one other YDW from
performing restraints, presents an issue of fact as to whether restraining unruly youth
was an essential function of the YDW position.

29

Lukasiewicz Reply Exh. A.

24 

If restraining unruly youths is not an essential function of the YDW position, then
Plaintiff must be found able to perform the essential functions of the YDW position
without regard to whether Plaintiff required any accommodation of her left hand
impairment. On the other hand, if it is ultimately determined that restraining unruly
Detention Center residents was an “essential function” of Plaintiff’s YDW position, then
Plaintiff may be able to establish Defendants discriminated against her in violation of the
ADA by “‘not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability.’’” Sheng v. M&T Bank
Corporation, 848 F.3d 78, 86 (2d Cir. 2017) (quoting McBride v. BIC Consumer
Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009) (quoting 42 U.S.C.
12112(b)(5)(A))). “A plaintiff makes out a prima facie case of disability discrimination
arising from a failure to accommodate by showing each of the following:
(1) [P]laintiff is a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations.”
Id. (quoting McBride, 583 F.3d at 96-97) (internal quotation marks omitted)).
In particular, Plaintiff must establish there was a reasonable accommodation that would
have permitted Plaintiff to perform the essential job function of restraining unruly youths
because “‘[a] reasonable accommodation can never involve the elimination of an
essential function of a job.’” Stevens, 851 F.3d at 230 (quoting Shannon, 332 F.3d at
100). Nevertheless, “[a] reasonable accommodation may include ‘job restructuring,
part-time or modified work schedules, reassignment to a vacant position, . . . and other
similar accommodations for individuals with disabilities.’” Id. (quoting 42 U.S.C. §

25 

12111(9)). Requiring another employee to perform the essential functions of a disabled
worker’s job, however, is not a reasonable accommodation under the ADA. Id. at 231.
Although generally where the suggested reasonable accommodation is a transfer
to another position, the onus is on the plaintiff to establish she requested, considered
and was open to such position, Stevens, 851 F.3d at 230-31, in the instant case,
Plaintiff maintains, Plaintiff’s Response at 24, and Defendants do not dispute, that
Plaintiff was not required to request such an accommodation because the County’s
Transitional Duty Program (“Transitional Duty Program”), requires the County to offer
transitional duty to injured employees regardless of whether it is requested by the
employee. Transitional Duty Program30 at 2. As relevant here, “[i]f a qualified employee
does not request transitional duty work, Erie County will offer such work to the
employee, subject to availability of this work. . . . In cases where transitional work is
available, it generally will take place within an employee’s home department; however,
the assignment may take place in another department.” Id. Further, Defendants, in
response to Plaintiff’s discovery requests, provided a list of 16 accommodations granted
to YDWs between 2005 and 2015 including, inter alia, a light duty position in Family
Court in 2010, a modified sit down job in 2010, a position involving no patient contact,
but only paperwork duties and site visits in 2009, and a temporarily modified duty
requiring no restraining of residents at the Detention Center in 2009. YDWs
Accommodations.31 This evidence of positions which Plaintiff would have been able to
perform while restricted from restraining residence pending the completion of healing of
her left hand, in the absence of any evidence from Defendants that Plaintiff was offered,

30
31

Plaintiff’s Exh. 16.
Plaintiff’s Exh. 26.

26 

and declined, any transitional duty position, establishes a material issue of fact as to
whether Defendants failed to accommodate Plaintiff’s disability from September 19,
2009, until October 8, 2009 when Dr. Drummond cleared Plaintiff to return to work
without restriction.
Summary judgment thus is DENIED as to whether Plaintiff was subjected to
employment discrimination in violation of the ADA as an individual with a physical
impairment who nevertheless could perform the essential functions of her YDW job with
or without a reasonable accommodation.
b.

Regarded as Having an Impairment

Plaintiff also maintains that after Dr. Drummond, on October 8, 2009, cleared
Plaintiff to return to her YDW position without restriction, Defendants failed to do so,
despite being eligible under N.Y. Civil Service Law § 71 (“§ 71”), for reinstatement to her
prior position for up to four years from the date of her termination, establishes
Defendants regarded Plaintiff as having an impairment in violation of the ADA.
Plaintiff’s Response at 15-16. Defendants have not responded in opposition to this
argument, relying instead on their assertion that Plaintiff’s employment was terminated
for a legitimate, non-discriminatory reason, that is, Plaintiff’s physical impairment posed
a direct threat to Plaintiff and co-workers insofar as Plaintiff was rendered unable to
defend herself and others from physical attack by an unruly Detention Center resident.
Defendants’ Reply at 7-8.
The ADA, as amended by the ADAAA, provides that,
An individual meets the requirement of “being regarded as having such an
impairment” [under the ADA] if the individual establishes that he or she has been
subjected to an action prohibited under this chapter because of an actual or

27 

perceived physical or mental impairment whether or not the impairment limits or
is perceived to limit a major life activity.
42 U.S.C. § 12102(3)(A).
In other words, the ADAAA
“restores Congress’s original intent by making clear that an individual meets the
requirement of ‘being regarded as having such an impairment’ if the individual
shows that an action (e.g. disqualification from a job, program, or service) was
taken because of an actual or perceived impairment, whether or not that
impairment actually limits or is believed to limit a major life activity.”
Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012) (quoting H.R.Rep. No. 110-730, pt. 1,
at 14 (2008) (emphasis added).
As such, Plaintiff need not demonstrate that Defendants regarded her as being
substantially limited in a major life activing; rather, Plaintiff was only required to raise a
genuine issue of material fact as to whether Defendants regarded Plaintiff as having a
physical impairment. Id.
After Plaintiff was cleared by her PCP, Dr. Drummond, on October 8, 2009, she
no longer had any disability and, as such, no accommodation was required.
Significantly, Dr. Bergeron’s report, as determined by the Second Circuit, Grant, 542
Fed.Appx. at 24, admits Plaintiff could perform the regular duties of her YDW position,
and Bergeron’s “personal opinion” in which Plaintiff’s desire to return to the position is
“questioned” given an increased likelihood that Plaintiff would again be injured is
nothing more than mere speculation which does not, as a matter of law, support a
finding that Plaintiff was not able to perform the essential functions of her job.
Pursuant to § 71, if an employee separates service “by reason of a disability
resulting from occupational injury or disease as defined in the workmen’s compensation
law,” the employee is entitled to a one year leave of absence, or two years if the

28 

disability results from an assault sustained in the course of employment. N.Y. Civil
Service Law § 71. Following such leave the employee, within one year of the
termination of the disability, may apply for a medical examination to be conducted by a
medical officer selected by the department to certify the employee’s fitness for duty to
“be reinstated to his or her former position, if vacant, or to a vacancy in a similar position
or a position in a lower grade in the same occupational field, or to a vacant position for
which he or she was eligible to transfer.” Id. In the absence of an appropriate vacancy
to which the employee can be reinstated, “the name of such person shall be place upon
a preferred list for his or her former position, and he or she shall be eligible for
reinstatement from such preferred list for a period of four years.” Id. (italics added). It is
significant that Defendants have not replied in further support of summary judgment on
this point, nor do Defendants deny that upon being cleared to work without restriction on
October 8, 2009, Plaintiff was eligible for reinstatement pursuant to § 71. Rather,
Defendants assert only that temporary assignments to another job as a reasonable
accommodation must be in accordance with any relevant collective bargaining
agreement, and the determination as to whether such a job is available is part of the
County’s “objective decision-making process. . . .” Defendants’ Reply at 6. Defendants
do not, however, assert that any attempt was undertaken to determine whether a
suitable temporary assignment Plaintiff could perform was available.
Accordingly, there are issues of fact as to whether Plaintiff was entitled to be
reinstated to her YDW position pursuant to § 71 upon being cleared to return to work
without restriction.

29 

Moreover, Defendants’ assertion that Plaintiff’s termination was based on Dr.
Bergeron’s conclusion that Plaintiff’s physical condition posed a direct threat to the
safety of herself and her co-workers, Defendants’ Memorandum at 7-11; Defendants’
Reply at 7-8, is not supported by Dr. Bergeron’s Report. In fact, Dr. Bergeron’s Report
specifically states “[Plaintiff] would be able to defend herself,” Dr. Bergeron’s Report at
5, and is silent as to Plaintiff’s ability to protect co-workers, with no indication that Dr.
Bergeron was ever asked to comment on that possibility. Further Dr. Bergeron himself
emphasized that his examination of Plaintiff was only a “Fitness for Duty Evaluation.”
Id. at 5. Accordingly, the record contains sufficient evidence to avoid summary
judgment that Defendants’ failure to reinstate Plaintiff pursuant to § 71, to her YDW, or
similar, position after being cleared to work without restriction by Dr. Drummond on
October 8, 2009, consistent with Dr. Bergeron’s determination that Plaintiff could
perform the duties of her YDW job, including defending herself, was based on
Defendants’ perception that Plaintiff is disabled.
Summary judgment on Plaintiff’s claim that Defendants failed to reinstate Plaintiff
to her YDW position because they wrongly regarded Plaintiff as disabled in violation of
the ADA is DENIED.
Plaintiff having established genuine issues of material fact as to whether she has
established a prima facie case of employment discrimination under the ADA based both
on having an impairment, or being regarded as having an impairment, has shifted the
burden to Defendants to provide a legitimate, non-discriminatory reason for the
termination of Plaintiff’s employment.

30 

B.

Legitimate, Non-Discriminatory Reason for Termination

Defendant, in support of summary judgment, attributes the termination of
Plaintiff’s employment to Plaintiff’s inability to protect herself and her co-workers from
harm that could be inflicted by an unruly Detention Center resident, Defendants’
Memorandum at 7-11; Defendants’ Reply at 7-8, and Plaintiff was discharged pursuant
to Rule XVII of the Rules for the Classified Civil Service of the County of Erie which
provides that a leave without pay shall not exceed one year, with an absence in excess
of one year being deemed the equivalent of a resignation. Defendants’ Memorandum at
11-12. Plaintiff has not responded to this argument.
Genuine safety concerns have been held to be a legitimate, non-discriminatory
reason supporting an adverse employment action under the ADA. See, e.g., Gaines v.
N.Y.C. Transit Authority, 353 Fed.Appx. 509, 510-11 (2d Cir. Nov. 16, 2009) (holding
city transit authority’s directive prohibiting train operator with bilateral hearing aids from
operating trains in designated train yard was motivated by legitimate public safety
concerns and, as such, did not constitute unlawful employment discrimination under the
ADA). Accordingly, Defendants have stated a legitimate, non-discriminatory reason for
terminating Plaintiff’s employment, and the burden shifts to Plaintiff to establish a
material issue of fact exists that could support a finding that such legitimate, nondiscriminatory reason is mere pretext for unlawful discrimination.
C.

Pretext for Discrimination

Conclusory allegations unsupported by any evidence that an employer’s
legitimate, nondiscriminatory reasons for an adverse employment action are mere
pretext for discrimination are insufficient to satisfy Plaintiff’s burden under Rule 56(e) on

31 

summary judgment. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir.
2004) (affirming summary judgment where plaintiff presented only affidavit of
challenged custom and practice of race discrimination in absence of any evidence that
affiant had any connection with relevant department until after plaintiff was terminated
(citing Smith v. American Exp. Co., 853 F.2d 151, 154-55 (2d Cir. 1988) (affirming
summary judgment where plaintiff failed to present more than conclusory, unsupported
assertions that employer’s proffered race-neutral reason for denying promotion was
pretext))). Nevertheless, the Second Circuit has long recognized that direct evidence of
employment discrimination or a “smoking gun” is typically not available. Rosen v.
Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). As such, that a defendant’s legitimate,
nondiscriminatory explanation for an adverse employment action is mere pretext for
intentional discrimination may be established by circumstantial evidence. Holcomb v.
Iona College, 521 F.3d 130, 141 (2d Cir. 2008). Here, Plaintiff has produced sufficient
evidence that Defendants’ proffered legitimate, nondiscriminatory reason for terminating
her employment is mere pretext to disability-based employment discrimination.
In particular, Plaintiff has provided a list of 16 other YDWs who, after sustaining
injuries, were permitted either to return to work with no restrictions, or were permitted to
return to a modified position, YDWs Accommodations, yet Plaintiff was never offered a
similar accommodation despite the Transitional Duty Program requiring the County to
do so. Further, Defendants’ reliance on Dr. Bergeron’s Report as supporting the
asserted reason for terminating Plaintiff’s employment, i.e., that Plaintiff was unable to
defend herself or co-workers, as discussed above, Discussion, supra, at 29-30, is

32 

inapposite because Dr. Bergeron specifically found Plaintiff would be able to defend
herself, and is silent as to whether Plaintiff would be able to defend others.
As further circumstantial evidence that Defendants’ legitimate, nondiscriminatory
reason for terminating Plaintiff’s employment was mere pretext are inconsistent
statements made by Defendants regarding whether Defendants required an injured
employee to be fully healed prior to returning to work after a medical leave of absence.
Significantly, “[c]ourts have ‘consistently found’ that such ‘100% healed’ or ‘fully healed’
policies violate the ADA.” Warmsley v. N.Y. City Transit Auth., 308 F.Supp.2d 114, 12122 (E.D.N.Y. 2004) (citing cases) (“[T]he [defendant], by implementing its ‘disability has
terminated’ policy, required individuals returning from medical leave to be disability-free.
Thus, [defendant] regarded every former employee who had taken a medical leave as
‘substantially limited’ in his ability to work in a broad range of jobs.”); see also Rodriguez
v. Atria Sr. Living Group, Inc., 887 F.Supp.2d 503, 511 n. 3 (S.D.N.Y. 2012) (noting that
a “100% healed” policy prevents individual assessments and therefore violates the
ADA). In the instant case, Plaintiff maintains Defendants had an unlawful policy of not
returning YDW to work without being fully healed. Plaintiff’s Response at 15 (citing
Plaintiff’s Declaration ¶¶ 145-16). Although Defendants assert they do not have a policy
of requiring an injured employee be fully healed in order to return to work, Defendants’
Reply at 9 (maintaining whether to return an injured employee to light-duty work based
on the employee’s restrictions and the availability of suitable work is made on a caseby-case basis), when asked whether the County had a formal or informal policy
precluding returning employees to work unless they were cleared for full work duty,
Dobies specifically responded, “Yes,” and continued, “That was a standard. You

33 

needed clearance to return a hundred percent.” Dobies Dep. Tr.32 at 49. Of still further
evidence of pretext is that the Termination Letter does not allude to Plaintiff’s inability to
defend herself or others as a reason for terminating Plaintiff’s employment.
Accordingly, the record contains sufficient evidence upon which a reasonable
jury could find that Defendant’s legitimate, nondiscriminatory reason, viz., workplace
safety, for terminating Plaintiff’s employment was mere pretext for disability-based
employment discrimination. Summary judgment therefore is DENIED on Plaintiff’s ADA
claim.
3.

ADEA
Although in the Fifth Claim, Plaintiff claims Defendants discriminated against her

based on her age, 49, in violation of the ADEA, Complaint ¶¶ 42-44 (“ADEA Claim”),
Defendants assert, Defendants’ Memorandum at 12-13, Plaintiff has failed to point to
any evidence in the record suggesting the termination of Plaintiff’s employment was
based on Plaintiff’s age and Plaintiff, in opposing summary judgment, has not
responded to this assertion other than to acknowledged that she has already conceded
to the dismissal of her ADEA Claim in its entirety. Plaintiff’s Response at 2 (citing D&O
at 7). Defendants have not further addressed the ADEA Claim other than to assert “the
age discrimination claim can be dismissed.” Defendants’ Reply at 10.
Because Plaintiff conceded to the dismissal of the ADEA Claim, see D&O at 7
(citing Dkt. 16 at 5), and Plaintiff has not provided any argument for reviving such claim,
summary judgment is GRANTED as to Plaintiff’s ADEA Claim.

32

References to “Dobies Dep. Tr.” are to the transcript of the deposition of Dobies, portions of which are
filed as Plaintiff’s Exh. 6.

34 

4.

NYSHRL
Plaintiff’s Second and Sixth Claims, respectively, allege employment

discrimination under the NYSHRL based on disability, Complaint ¶¶ 31-34, and age, id.
¶¶ 45- 46 (together, “the state law claims”). In addressing Defendants’ earlier motion to
dismiss, the state law claims were dismissed, sua sponte, based on Plaintiff’s failure to
timely file a notice of claim to the County, as required by N.Y.County Law § 52. D&O at
11. The Second Circuit reversed the sua sponte dismissal of the state law claims
because Plaintiff had not been given notice of the ground for dismissal and an
opportunity to be heard on this inadequate notice affirmative defense which was not
asserted by Defendants. Grant, 542 Fed.Appx. at 24. Defendants, who raised
Plaintiff’s failure to serve the notice of claim as an affirmative defense in their Answer ¶
16, filed after the Second Circuit’s modification of the D&O, now argue in support of
summary judgment that Plaintiff’s failure to timely serve a notice of claim pursuant to
N.Y.County Law § 52 requires dismissal of the state law claims. Defendants’
Memorandum at 12. In opposing summary judgment, Plaintiff has not addressed her
state law claims other than to acknowledge their reinstatement by the Second Circuit.
Plaintiff’s Response at 2. In further support of summary judgment, Defendants reiterate
that although Plaintiff now been apprised of her failure to timely provide the County with
notice of her claims under state law, and provided with an opportunity to oppose
dismissal on this ground, she has failed to do so. Defendants’ Reply at 10.
Pursuant to N.Y. County Law § 52, prior to commencing an action for damages
against the county, the plaintiff must file and serve a notice of claim against the county
within 90 days after the claim arises. N.Y. County Law § 52(a). Plaintiff’s undisputed

35 

failure to serve the requisite notice, given that the 90-day time period for doing so has
long expired, is fatal to her state law claims. See Mills v. Monroe County, 451 N.E.2d
456, (N.Y. 1983) (“When an employment discrimination action is brought against a
county under the State . . . statutes, the failure to timely file a notice of claim shall be
fatal unless the action has been brought to vindicate a public interest or leave to serve
late notice has been granted by the court.”). No argument having been advanced that
the instant action has been brought to vindicate a public interest, nor any request for
leave to serve late notice having been made to the court, Plaintiff’s failure to serve the
County with any notice of claim requires dismissal of the state law claims.
Defendants’ Motion is GRANTED as to the state law claims.
5.

Retaliation
Insofar as Plaintiff asserted retaliation claims under the ADA and NYSHRL,

Complaint ¶¶ 35-41, the dismissal of such claims in the D&O, D&O at 11-12, was
affirmed by the Second Circuit. Grant, 542 Fed.Appx. at 24. Accordingly, such claims
remain dismissed and are not before the court on summary judgement.

CONCLUSION
Based on the foregoing, Defendants’ Motion (Dkt. 80) is DENIED in part and
GRANTED in part, and the case will be scheduled for trial on Plaintiff’s ADA claims.
SO ORDERED.
/s/ Leslie G. Foschio  
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

May 18, 2017
Buffalo, New York

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