Querry v. Messar

14 F.Supp.2d 437

Rosalyn QUERRY, Plaintiff, v. Francis J. MESSAR, individually, Emil Cavorti, individually, Donald Christopher, individually, Oracle Management Services, Inc. and the City of Yonkers, N.Y., Defendants.

No. 98 CIV. 0019(WCC).

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

July 27, 1998.

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Lovett & Gould, for Plaintiff, White Plains, NY, Lee Ann Crossley, of counsel.

William M. Mooney, Corporation Counsel of the City of Yonkers, for Defendants Francis J. Messar, Emil Cavorti, Donald Christopher and the City of Yonkers, N.Y., Yonkers, NY, Elisabeth A. Palladino, Deputy Corporation Counsel, of counsel.

Ahmuty, Demers & McManus, for Defendant Oracle Management Services, Inc., Albertson, NY, Janice Berkowitz, Christopher P. Cartier, of counsel.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiff Rosalyn Querry brings this action against the City of Yonkers, New York, Yonkers Police Commissioner Donald Christopher, Captain Francis Messar, Lieutenant Emil Cavorti, (collectively, the "City defendants"), and Oracle Management Services, Inc. ("Oracle"), alleging discrimination based on gender and disability and tortious interference with contract in violation of the Equal Protection Clause of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964 ("Title VII"), § 2000e, et seq., the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101, et seq., the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985 ("§ 1983" and "§ 1985," respectively) and New York law. The City defendants move for summary judgment on all claims pursuant to Fed.R.Civ.P. 56. Defendant Oracle moves to dismiss the Complaint with prejudice, as against it, pursuant to Rule 12(b)(6). For the following reasons, the City defendants' motion is granted in part and denied in part, and defendant Oracle's motion is granted to the extent that plaintiff's claims are dismissed without prejudice.

Background

Rosalyn Querry is a police officer with the Yonkers Police Department (the "Department"). From May 1987 through January 1996, she worked full-time in the Second Precinct, in the forensics lab from May 1988 to January 1995, and on patrol from January 1995 through January 1996. During this time, Querry had received numerous awards and commendations, and had achieved a near-perfect attendance record, having never missed work on account of illness or disability.

On January 31, 1996, Querry slipped and fell on the ice while working. As a result, she suffered a debilitating back injury and was absent from work between February 2, 1996 and March 29, 1996.

What happened thereafter is less clear. It appears that on or around March 30, 1996, defendant Oracle, an alleged third-party provider of medical services and an administrator of claims for the City, ordered Querry back to work. Apparently, Querry returned to work that same day, but remained on duty for only four hours, due to intense back pain. Querry was absent from work on April 2, 3, 21 and 22, and from May 6 to May 27 on account of her injuries. She was diagnosed as having "chronic low back syndrome" and a degenerative disc.

On May 28, 1996, Querry was again ordered back to work.¹ Querry worked until June 28, 1996, when she once again began suffering from "excruciating back and leg pain." Querry was then absent from work until July 2, 1996, at which time she was again ordered back. Querry then worked from July 4 until August 5, 1996, at which time she took a scheduled vacation, which was to be completed by September 2. However she did not return to work until September 24, due to continued back and leg pain.

Around this time, defendants Christopher and Oracle asked plaintiff to be examined by Michael Bardwell, a chiropractor. Bardwell determined that Querry would not be fit to return to work for at least four weeks and scheduled a follow-up visit for later that month. Querry alleges that because defendants Messar, Cavorti, and Oracle were "[u]nwilling to accept this recommendation," and wished to "forc[e Querry's] premature return to duty," they "ordered [her] to be immediately re-examined by the same chiropractor," who, upon being "pressured, bullied and intimidated" by defendants, "altered his opinion and determined that [Querry] could forthwith return to work."² Querry returned to work, while continuing to suffer from back pain. Defendants terminated her disability benefits on or about September 25, 1996. Querry alleges that her injuries were exacerbated on account of the City's refusal to pay for further treatment, and that she began to suffer from panic attacks, heart palpitations, anxiety, "persistent sinus tachycardia," and "hyperkinetic heart."

On January 15, 1997, Querry's treating physician, Dr. Robert Werboff, advised defendants that she could not operate a police vehicle on account of her injuries. According to Querry, defendants Cavorti and Messar "deliberately [and] falsely advised" her that her physician had forbidden her to operate her own car as well, "to upset" her, "exacerbate her psychological disability and set her up for potential disciplinary charges in the event that she used her personal vehicle" to get to work.

On or about January 21, 1997, Michael Sussman, an attorney who was then representing Querry, called defendants to discuss "Oracle's withholding of approval for treatments of [Querry's] back; the repeated harassment [she] received by reason of her disabilities, the issuance of orders to force her to return to work when that was medically contra-indicated; [and] the City's deliberate exacerbation of [Querry's] stress and heart [condition]."

Querry filed a charge with the New York district office of the Equal Employment Opportunity Commission ("EEOC") on July 9, 1997, claiming discrimination based on gender and disability in violation of Title VII and the ADA. The charge stated that she had "systematically been refused [reasonable] accommodation" for her disabilities, "targeted for retaliatory micro-managerial nit-picking," "deliberately ordered to perform work assignments with a (now successful) view towards exacerbating [her] physical and related emotional disabilities," and "threatened with disciplinary action ... for seeking to comply with [her] treating physician's instructions." Querry also alleged that "certain male supervisors" had "referred to [her] as a bitch."

In her complaint, Querry does not allege that she was threatened with disciplinary action; however, she does allege that Messar, "with the concurrence of Oracle, Cavorti and Christopher," retaliated against her in Spring of 1997 by refusing "to permit [her] to resume her police duties," and "forc[ing] her to utilize/waste otherwise accumulated sick time—since her own physician had [falsely] certified that she was not then disabled." Querry also claims that "she was punitively assigned ... to midnight tours of duty," when she had consistently worked days since 1988. Querry also alleges that Messar has called her a "bitch" and that Christopher has denied her special duty assignments "while deliberately according those assignments to male officers." Finally, Querry alleges that in or around September 1997, defendants caused Querry's physician once more to alter his medical opinion and direct Querry back to work, when she was still disabled.

Defendants deny that they discriminated against Querry or conspired to pressure her doctors into altering their opinions. Defendants point out that Querry has continued to miss work to date. According to the City defendants, Querry reported to work only 19 days during 1997 and as of April 7, the date of their motion, had worked only twelve days in 1998. Moreover, the City defendants suggest that they have reasonably accommodated Querry by offering her "light duty assignments," such as the position of "Desk Officer" in the Second Precinct, and a job in the Communications Division, which required her "to take low priority police reports over the telephone." Defendants also claim to have transferred Querry from the forensics lab to patrol because of a "patrol manpower shortage." Additionally, defendant Oracle offers various legal defenses for dismissing the Complaint with respect to it, including that it is not a state actor, and that Querry has failed to allege "joint action" on its part with the City, and the existence of a valid contract between plaintiff and her medical providers.

DISCUSSION

The City defendants and Oracle have moved to dismiss the Complaint pursuant to Rules 56 and 12(b)(6) respectively. Because these defendants rely on different grounds, the Court will consider their arguments separately below.

I. Claims Against the City Defendants

A. Summary Judgment Standard

The City defendants move for summary judgment pursuant to Fed.R.Civ.P. 56.³ Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(d). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences drawn in the light most favorable to the non-movant. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998). The court must be particularly cautious about awarding summary judgment to a defendant employer where intent is at issue, Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1224 (2d Cir.1994), or where the non-moving party has been afforded no discovery, Meloff v. New York Life Ins. Co., 51...