Iorio v. The Cnty. of Suffolk

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ANNE DI IORIO, Plaintiff, v. THE COUNTY OF SUFFOLK, Defendant.

No. 21-cv-01273 (JMW)

United States District Court, E.D. New York

May 1, 2024

Yale Pollack, Esq. Law Offices of Yale Pollack, P.C. Attorney for Plaintiff

Hope Senzer Gabor, Esq. Suffolk County Department of Law Attorneys for Defendant

MEMORANDUM AND ORDER

JAMES M. WICKS, UNITED STATES MAGISTRATE JUDGE

Emergency 911 dispatchers . . . serve the critically important role as gatekeepers of emergency response. They are, in the truest sense, the first link in the chain of first responders that answer the call for emergency services. They are the lifeline between the caller-who perhaps is experiencing the worst day of his or her life-and the police fire, and other responding departments. Clear, effective communication is the hallmark of a good [dispatcher]. They ensure that the correct departments and agencies get dispatched and assist in ensuring that all go home safely. They are, indeed, the calm in the storm.^[1] Plaintiff Anne Di Iorio, (“Plaintiff”), a former dispatcher, commenced this suit against Defendant The County of Suffolk (“Defendant,” “Suffolk,” or the “County”), alleging violations under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq., (“ADA”), and New York State Human Rights Law, N.Y. Executive Law § 290, et seq. (“NYSHRL”) (ECF No. 1 at ¶ 1.) Specifically, Plaintiff asserts claims against Defendant for (i) failure to accommodate under Title I of the ADA (“Count I”); (ii) failure to accommodate under the NYSHRL (“Count II”); (iii) intentional discrimination under Title I of the ADA (“Count III”); (iv) intentional discrimination under the NYSHRL (“Count IV”); (v) retaliation under Title I of the ADA (“Count V”); (vi) retaliation under the NYSHRL (“Count VI”); and (vii) disparate impact discrimination under Title I of the ADA (“Count VII”). See generally, ECF No. 1.

Plaintiff alleges that she was forced to retire from her position as a Public Safety Dispatcher from the County's 911 Call Center in Yaphank, following the County's implementation of a mandatory overtime policy for 911 Call Center employees, of which she was unable to comply with due to her medical condition. (Id. at ¶ 12, 21, 45.) Following completion of discovery (ECF No. 27), the County requested leave to file a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, which was subsequently granted by the undersigned. (ECF No. 32.)^[2]Now before the court is Defendant's Motion for Summary Judgment on all Counts asserted in the Complaint (see ECF No. 34), which is opposed by Plaintiff (ECF No. 35.) For the reasons stated herein, Defendant's Motion (ECF No. 34) is GRANTED on all Counts.

BACKGROUND

I. Factual Background

The following facts are drawn from the parties' Local Rule 56.1(a) Statements and are uncontested unless otherwise noted.^[3]

A. Public Safety Dispatcher Roles

Plaintiff began her employment with Defendant at the Suffolk County Police Department (“SCPD”) as a Public Safety Dispatcher (“PSD”) I in 1997. (ECF No. 34-1 at ¶ 1.) Her position was always a PSD I until her retirement in 2014. (Id. at ¶ 2.)^[4] A PSD I was a desk job that entailed obtaining information from 911 phone operators and dispatching it to the police. (Id. at ¶ 6.) Specifically, in Plaintiff's PSD I Job Description, it is noted that the duty of a PSD I is to:

Operate[] a two-way radio communication system to dispatch public safety personnel to calls for assistance. May operate a telephone switchboard or complaint receiving system which receives requests from the public for police or other public safety assistance.

(ECF No. 34-19 at ¶ 2.)^[5]

PSD Is are supervised by PSD IIs, who oversee the 911 operators and police dispatchers, staffing, and scheduling. (ECF No. 34-1 at ¶ 7.) Specifically, PSD IIs are floor supervisors who assign priority overtime, “take care” of the mandates, take calls for people who are calling in sick, assist dispatchers in getting their calls outs, and monitoring all employees on the floor. (Id. at ¶ 8.) PSD IIIs are involved in overseeing the operations of the 911 operators and the dispatchers, with the added responsibility of being a liaison to the command staff and tracking of all events, and they report to either a police lieutenant or captain, or a deputy inspector, depending upon who is assigned at any particular time. (Id. at ¶¶ 9-10.) Jennifer Devine was additionally hired as a PSD I in 1997 and served as a radio partner with Plaintiff when they were both PSD Is. (Id. at ¶¶ 13-14.) Ms. Devine was promoted to PSD II in 2010 and subsequently to a PSD III. (Id. at ¶¶ 12-13.) From 2010 until 2014, Ms. Devine served as Plaintiff's supervisor. (Id. at ¶ 29.) Jeremy Sommeso was hired by as a PSD I in 1998. (Id. at ¶ 15.)^[6]He was first promoted to a PSD II, and then in 2013 he received a provisional appointment to PSD III. (Id.) In 2015, Mr. Sommeso was appointed to a permanent PSD III position. (Id.)

B. SCPD Overtime Provisions and Policies

The parties dispute how overtime for a PSD I position was administered. See ECF No. 34-19 at ¶ 9. According to Defendant, “there has been an overtime mandate in the [SCPD] since at least 1998, when [Mr.] Sommeso was hired.” (ECF No. 34-1 at ¶ 16.)^[7]Defendant explains:

A mandate is utilized when there are not enough PSD I's to reach minimum staffing levels and there are no volunteers to work an overtime period to meet those minimum staffing levels. Employees are then mandated to stay for that overtime. There has always been mandatory and voluntary overtime. First, employees are canvassed for voluntary overtime. If there are no employees who volunteer for the overtime, then an employee is mandated to either stay past their shift or come in early before their shift.

(Id. at ¶ 19.) Defendant states that working mandated overtime “is a core function of the job of a PSD I, since the 911 [C]all [C]enter is an emergency operations center” and that “[i]n order to keep the emergency operations functional staffing must be maintained[,]” which is “discussed at orientation when PSDs are hired.” (Id. at ¶¶ 22, 24.) According to Defendant, “the overtime mandate occurs when the squad runs out of employees who volunteer for overtime and there are still positions that need to be filled in order to keep the department running.” (Id. at ¶ 23.) The mandates are for an additional 4-hour shift, either prior to or following a PSD I's regular 8-hour shift. (Id.) Defendant further explains that between approximately 2010 and 2014, the SCPD implemented two different methods of mandating overtime:

Closer to 2010, a chart was maintained that would track an individual's mandatory overtime. If that individual had not worked a mandatory overtime shift further back than everyone else, then that individual was up for mandate. Sometime after 2010, it transitioned from the last date worked, so if an individual had the furthest date for voluntary or mandated overtime, that person was mandated. In cases of a tie, seniority would be a factor; if two employees had the last date of mandated overtime, then the less senior employee would be the first mandated and the more senior would be the second one to be mandated.

(Id. at ¶ 20.) Defendants claim that “Plaintiff was mandated to work overtime between 1997 and 2013.” (Id. at ¶ 25.)^[8]By contrast, Plaintiff asserts that when she began her employment, overtime was voluntary. (ECF No. 34-19 at ¶ 9.) In making that assertion, Plaintiff relies on the overtime provision of the Collective Bargaining Agreement, effective from January 1, 2004 to December 31, 2008 (the “CBA”), entered into between the SCPD and the Suffolk County Association of Municipal Employees, Inc.^[9], which provides, in relevant part:

6.2 Equalization of the Opportunity for and Obligation to Perform Overtime. Overtime work, as an opportunity, in the same or related title shall be equalized among Departmental employees as far as is practical. Department Heads and supervisors may require the performance of overtime or “called-in” work for reasonable periods as an obligation in cases where, because of seasonal or extraordinary requirements related to the job or because of the absence of normal personnel for whatever reason, the work is necessary to meet the normal work demands of the function of the Department or some emergency exists. Seniority shall be a criterion in the selection of employees for overtime, provided that the employees have the ability to do the work.

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8. TIME FOR PERFORMANCE OF SERVICES

8.1 Work Week/Work Day

No individuals shall be required to work more than a normal 40-hour workweek (e.g., in a work location where employees currently work a normal 40 hour workweek due to “lock-in,” new employees would also work the same 40 hours).

(Id. at ¶ 6-8; ECF No. 35-5 at 9-15.)

The SCPD additionally issues “Department Directives,” which contain, in-part, “procedures and parameters . . . concerning the assignment of overtime.” (ECF No. 34-1 at ¶ 28.) Department Directive Order Number 2009-17, effective October 6, 2009 (hereafter, the “2009 SCPD Department Directive”), contains the Subject/Topic/Title “Civilian Overtime Distribution[,]” and was in effect during the time of Plaintiff's employment. (Id.)^[10] The 2009 SCPD Department Directive provides, in relevant part:

3. [Emergency Complaint Officer (“ECO”)] Overtime: on duty ECO's will be given preference when ECO positions are available. If unable to fill with on duty ECO proceed to on duty PSD. If unable to fill with on duty PSD, proceed to on duty PSD II.

4. PSD Overtime: on duty PSDs/PSDIIs will be given preference when PSD positions are available.

5. If vacancies still exist, personnel on [Regular Day Off (“RDO”)] will then be hired.

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