Kaganovich v. McDonough

547 F.Supp.3d 248

Eugene KAGANOVICH, Plaintiff,

v.Denis MCDONOUGH, Secretary, Department of Veterans Affairs,¹ Defendant.

18-cv-2517 (ENV) (ST)

United States District Court, E.D. New York.

Signed June 28, 2021

Filed July 2, 2021

Paula Johnson Kelly, New Rochelle, NY, for Plaintiff.

Michael Joseph Castiglione, United States Attorney's Office, Brooklyn, NY, for Defendant David J. Shulkin, M.D.

MEMORANDUM & ORDER

VITALIANO, D.J.

On April 27, 2018, Eugene Kaganovich filed this action against the Secretary of Veterans Affairs, alleging discrimination on the basis of disability and retaliation in violation of Section 501 of the Rehabilitation Act of 1973.² Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). For the reasons set forth below, defendant's motion is granted in part and denied in part.

Background ³

Kaganovich is a registered nurse who has worked at the Brooklyn campus of the Department of Veterans Affairs ("VA") New York Harbor Healthcare System since 2001. See Pl.’s 56.1 Reply, Dkt. 30, ¶ 1. Until 2013, he worked as a nurse in the Intensive Care Unit ("ICU"). Id. ¶ 3. Kaganovich was diagnosed with Type 1 diabetes at age six, nearly fifty years ago. Id. ¶ 2; Tamler Rept., Dkt. 28-23, at 9. In late 2011, he suffered from an infection and a worsening of his diabetes, leading him to take medical leave at his doctors’ request until March 5, 2012. See Pl.’s 56.1 Reply ¶ 4; Kaganovich Tr., Dkt. 28-22, at 34:13–45:19; May 16, 2016 EEOC Tr., Dkt. 28-16, at 27:6–21; Dkt. 32-12 at 7–8. His doctors recommended that he be transferred out of the ICU upon his return to work, fearing that the long hours, stress and physical demands of working with critical care patients were detrimental to his health. See Dkt. 28-1.

In advance of his return, on January 23, 2012, Kaganovich submitted a request for reasonable accommodation. See id. ; Pl.’s 56.1 Reply ¶ 5. He requested reassignment to an outpatient clinic, as well as limitations on standing, walking, lifting and climbing. See Pl.’s 56.1 Reply ¶ 6. In a clinic, Kaganovich said, he would gain "predictable times during which I can sit down for a meal, snacks and take my insulin as prescribed." Id. He submitted the documentation to his supervisor, nurse Jo Ann Roberts, who told him to submit it to her supervisor, nurse Laura Vigliarolo. See May 16, 2016 EEOC Tr. at 32:15–33:6. Vigliarolo told him to give it back to Roberts, which he did. Id. at 33:4–6. According to Kaganovich, Vigliarolo also told him to have his doctors reword their letters to omit requests for transfer to an outpatient clinic because there were no vacancies at the time, which he did not do. Id. at 33:19–25; Kaganovich Tr. at 89:11–90:18. He also sent Vigliarolo a letter detailing the help he could offer working with diabetes patients in a clinic. See Pl.’s 56.1 Reply ¶ 7; Dkt. 28-2. On January 27, 2012, he emailed Vigliarolo that he had "decided to work in outpatient settings," to which she replied that employees could not pick reassignments, and that she had "offered [him] a job within the scope of [his] limitations." Dkt. 32-23. At that point, however, Kaganovich says he had not been told whether his request had been granted, so he asked his supervisors about it throughout February. See Dkts. 32-24, 32-25.

When Kaganovich returned to work on March 5, 2012, Vigliarolo reassigned him from working directly with ICU patients to staffing the unit's telemetry station. See Pl.’s 56.1 Reply ¶ 8. There, he worked eight-hour shifts sitting and watching monitors that displayed patients’ data, alerting medical staff of any issues. Id. ¶¶ 8–9. Because he still believed the telemetry position was temporary and that his accommodation request was pending, he continued to ask for updates. See Kaganovich Tr. at 101:12–17; Dkt. 32-25. On March 23, Vigliarolo informed him that the telemetry position was his official accommodation, calling it "much more conservative than the limitations described by [his] physician." Dkt. 28-3. Although the hospital had a Reasonable Accommodation Committee ("RAC"), she informed him that it only intervened when an employee could not be accommodated within his current service. Id. Vigliarolo testified that she believed the telemetry position would accommodate Kaganovich's needs, whereas the outpatient clinics had no vacancies and, even if they did, would be too physically demanding and allow too few breaks. See May 17, 2016 EEOC Tr., Dkt. 28-17, at 209:10–210:8.

Kaganovich asked Vigliarolo to describe his new duties in writing, which she did in a memorandum dated March 23, 2012. Dkt. 28-4. In addition to memorializing Kaganovich's reassignment to the telemetry station, the memorandum also memorialized VA's commitment that he would work eight hour shifts five days a week with weekend and holiday coverage. Id. It was further understood that his shifts were to include two 15-minute breaks and a 30-minute lunch hour spaced according to his physical needs. Id. He remained concerned with the unit's ability to find a nurse to replace him at the telemetry station, which was supposed to be staffed at all times.

This was not an idle concern. Kaganovich avers that he needed to take breaks not on a set schedule but when needed in order to regulate his blood sugar. Dkt. 28-3. In fact, he wore a pump that dispensed insulin at regular intervals, but insulin lowers blood sugar, so Kaganovich still had to eat or take glucose tablets to raise his blood sugar when conditions might unpredictably demand. See Kaganovich Tr. at 118:4–25. He also wore a glucose monitoring device, which tracked his blood sugar levels but required finger stick tests to verify its readings. See id. at 119:5–18; Kaganovich Aff., Dkt. 32-13, at 3–4; Tamler Rept. at 5. Moreover, the insulin pump and glucose monitoring device did not communicate with each other, although he could manually reprogram the insulin pump if needed. See Kaganovich Aff. at 3. He also noted that he was unable to feel whether symptoms were tied to his blood sugar being too high or too low, adding to the unpredictability and providing further reason for finger stick tests. See Kaganovich Tr. at 120:7–15. He claimed he had to leave the telemetry station to test his blood sugar and to eat, since he needed to wash his hands before doing either given the ICU's high infection risks. See id. at 119:25–120:6; Kaganovich Aff. at 5. He added that eating at the station was prohibited by VA infection control policy, although he was later told he could eat glucose tablets there. See Kaganovich Tr. at 120:7–18.

In response to a March 19, 2012 email from Kaganovich asking what to do if he needed to leave the station to manage his blood sugar, Vigliarolo told him to contact the charge nurse, whose job was to oversee the shift, and said his coworkers would accommodate his break times. See Dkt. 32-25 at 4–5. Roberts echoed these instructions. Id. at 3. Kaganovich contends that, from the start, he had trouble finding nurses to replace him at the telemetry station for breaks, leading to fluctuating blood sugar levels. See id. at 97:25–98:16, 113:4–114:20; Pl.’s 56.1 Reply ¶ 10. He testified that he was often left off the daily assignment sheet used to record nurses’ breaks—although Roberts averred that this increased the flexibility of his schedule, and that it was common practice for the nurses to work out break times among themselves. See Pl.’s EEO Interview, Dkt. 28-11, at 9; May 16, 2016 EEOC Tr. at 75:19–76:4; EEO Rept., Dkt. 32-5, at 6.

Roberts also recalled telling the ICU nurses in around March 2012 to make sure Kaganovich received breaks. See Aug. 17, 2016 EEOC Tr., Dkt. 28-19, at 14:2–15:9.

Regardless, Kaganovich alleges he often had to delay or skip breaks due to lack of coverage at the telemetry station. See May 16, 2016 EEOC Tr. at 76:5–15; Kaganovich Tr. at 97:25–98:16, 113:4–114:5. Kaganovich testified that he would ask the charge nurse for breaks as needed, in addition to asking nurses who passed by and using the overhead paging system, but that everyone was too busy with patients to relieve him on time. See Kaganovich Tr. at 113:21–115:20. He cited low staffing levels, the high level of care needed by ICU patients and the fact that nurses were typically in patients’ rooms as reasons he had trouble finding coverage. See id. at 113:15–114:20. He was occasionally assigned to work at telemetry monitors on another floor, where he likewise had trouble getting breaks because he had to wait for an ICU nurse to come upstairs to relieve him. See, e.g. , May 16, 2016 EEOC Tr. at 88:6–90:15, 99:6–22, 104:19–105:20.

Significantly, ICU nurse Gladys Muniz corroborated these difficulties, stating that while she and others would try to relieve him for breaks, he would often have to wait over an hour because they had to prioritize patients. See Aug. 16, 2016 EEOC Tr., Dkt. 28-18, at 97:16–98:9. She estimated there was a fifty percent chance that Kaganovich could be relieved on request. See EEO Rept. at 6. She testified that once, she found Kaganovich nearly unresponsive at the telemetry station due to severely low blood sugar and had the charge nurse take him to another room, where he needed an injection to raise his blood sugar. See Aug. 16, 2016 EEOC Tr. at 95:20–96:5, 99:22–100:23; Kaganovich Tr. at 179:18–180:7. On May 2, 2012, his endocrinologist wrote a note asking that he be granted breaks to check his blood sugar and eat. See Dkt. 32-8 at 7.

Starting in late July 2012, Kaganovich engaged union representatives in seeking written permission from Vigliarolo to briefly leave the telemetry station to manage his diabetes if he could not find someone to relieve him. See Pl.’s 56.1 Reply ¶ 10; Dkts. 28-6, 32-27. Vigliarolo—who claims this was the first time she heard he was having trouble getting breaks—declined to sign anything. See Dkt. 28-6; EEO Rept. at 5. She cited a concern that he would leave for reasons unrelated to his diabetes, noting that she had...