Wagner v. Cnty. of Nassau & Cnty. of Nassau Dep't of Pub. Works

BARBARA WAGNER, Plaintiff, v. COUNTY OF NASSAU and COUNTY OF NASSAU DEPARTMENT OF PUBLIC WORKS, Defendants.

11-CV-1613(JS)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: July 11, 2014

MEMORANDUM & ORDER

APPEARANCES

For Plaintiff:

Josh H. Kardisch, Esq.

Kardisch Law Group, PC

For Defendants:

Liora M. Ben-Sorek, Esq.

Nassau County Attorney's Office

SEYBERT, District Judge:

Currently pending before the Court is defendants County of Nassau (the "County") and County of Nassau Department of Public Works' ("DPW" and together with the County, "Defendants") motion for summary judgment. For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND¹

Plaintiff Barbara Wagner ("Plaintiff") worked for Defendants from 1988 to 1991 and from 1992 to 2007. (Defs.' Am. 56.1 Stmt., Docket Entry 23-1, ¶ 1.) In 2001, she was promoted to a Laborer II position. (Defs.' Am. 56.1 Stmt. ¶ 11.) In 2005, she was reassigned to the Fleet Management Bureau at the DPW, where she received disciplinary actions regarding latenesses and insubordination. (Defs.' Am. 56.1 Stmt. ¶¶ 12, 14.)

On March 16, 2007, Plaintiff moved from the Fleet Management Bureau to the Facilities Management Bureau. (Defs.' Am. 56.1 Stmt. ¶ 15.) There, she reported directly to Peter Andriano, the Deputy Superintendent of Buildings. (Defs.' Am. 56.1 Stmt. ¶ 15.) Mr. Andriano assigned Plaintiff the task of obtaining records of fuel oil tanks from the Water Management Office. (Defs.' Am. 56.1 Stmt. ¶ 15.) According to Defendants, however, Mr. Andriano was not satisfied with Plaintiff's work. (Defs.' Am. 56.1 Stmt. ¶¶ 15-16.) As such, Plaintiff was transferred to Warehouse A, where she could receive increased supervision. (Defs.' Am. 56.1 Stmt. ¶ 17.)

Plaintiff's duties while at Warehouse A included straightening aisles and performing inventory on boxes of nuts, bolts, and screws. (Defs.' Am. 56.1 Stmt. ¶ 20.) According to Defendants, Plaintiff's unsatisfactory work performance continued. (Defs.' Am. 56.1 Stmt. ¶ 21.) She was late and absent and used the County phone and computer for her own personal use. (Defs.' Am. 56.1 Stmt. ¶ 21.) In fact, while assigned to Warehouse A, Plaintiff requested an accommodation to change her hours from 7:00 a.m. to 3:30 p.m. to 8:00 a.m. to 4:30 p.m. in order to reduce her tardiness. (Defs.' Am. 56.1 Stmt. ¶ 24.) Defendants made this change, though they maintain that it did not reduce Plaintiff's tardiness. (Defs.' Am. 56.1 Stmt. ¶ 24.)

Early in her assignment at Warehouse A, Plaintiff complained to Kurt Roocke, Plaintiff's direct supervisor, and Mr. Andriano that she was not feeling well and believed it to be caused by the ambient environment within the warehouse. (Defs.' Am. 56.1 Stmt. ¶ 26.) During this time, Plaintiff also had a second job working as a Data Entry Clerk at the Uniondale Fire District. (Defs.' Am. 56.1 Stmt. ¶ 23.)

Although no other employees complained, Defendants arranged for the Office of the Fire Marshal-County of Nassau Hazardous Materials Division to test the environment in the warehouse on November 19, 2007. (Defs.' Am. 56.1 Stmt. ¶ 27.)On December 20, 2007, DPW also requested that the County Department of Health test the indoor air quality. (Defs.' Am. 56.1 Stmt. ¶ 27.) The results from the Fire Marshal were normal, though there may have been trace amounts of carbon monoxide. (Defs.' Am. 56.1 Stmt. ¶¶ 27-28; Pl.'s Am. 56.1 Counterstmt., Docket Entry 23-3, ¶ 27.) Plaintiff asserts that the January 17, 2008 inspection by the County Department of Health revealed high levels of carbon dioxide, low temperatures, and poor ventilation. (Pl.'s Am. 56.1 Counterstmt. ¶ 27.) Plaintiff also brought in her own device to test for carbon monoxide, and the results were normal. (Defs.' Am. 56.1 Stmt. ¶ 28.)

Plaintiff subsequently gave Roocke a note from Steven Seyburn, M.D. dated November 21, 2007 stating that Plaintiff's work environment was making her sick. (Defs.' Am. 56.1 Stmt. ¶¶ 30-31.) Fredrick Maroni, another of Plaintiff's supervisors, then sent Plaintiff home sick until she could produce a doctor's note authorizing her to return to work "with no restrictions." (Defs.' Am. 56.1 Stmt. ¶ 31.) According to Defendants, DPW's return to work policy requires that an employee submit a doctor's note stating that he or she can return to work with no restrictions. (Defs.' Am. 56.1 Stmt. ¶ 36.) This is because there are no "light duty" positions with DPW and an employeemust remain out sick until she can return to work in a full capacity. (Defs.' Am. 56.1 Stmt. ¶ 37.)

Plaintiff did not return to work after November 30, 2007. (Defs.' Am. 56.1 Stmt. ¶ 32.) However, she did submit two other doctor's notes from Jeffrey M. Caruso, D.O., dated December 3, 2007 and December 5, 2007, respectively. (Defs.' Am. 56.1 Stmt. ¶ 33.) The December 3rd note stated that Plaintiff could return to work but that she would have to be "closely monitored." (Defs.' Am. 56.1 Stmt. ¶ 33.) Defendants rejected this letter due to the caveat of close monitoring and because the letter did not make clear whose responsibility it was to monitor Plaintiff. (Defs.' Am. 56.1 Stmt. ¶ 33.) The December 5th note stated that the work environment was making Plaintiff ill but that she could return to work without any restrictions. (Pl.'s 56.1 Counterstmt. ¶ 77; Def.'s 56.1 Counterstmt., Docket Entry 23-4, ¶ 79.) Plaintiff maintains that she was unaware that the letters had been rejected. (Pl.'s Am. 56.1 Counterstmt. ¶ 34.) Plaintiff did not submit any further notes and Defendants maintained that there were no available positions within DPW to which Plaintiff could be transferred. (Defs.' Am. 56.1 Stmt. ¶¶ 34-35; Pl.'s Am. 56.1 Counterstmt. ¶ 35.)

Thereafter, Plaintiff submitted a Step 1 Contract Grievance with her union, the CSEA. (Defs.' Am. 56.1 Stmt.¶ 38.) Plaintiff also made a complaint to the Public Employee Safety and Health Bureau ("PESH") and participated in a Workers' Compensation hearing. (Defs.' Am. 56.1 Stmt. ¶¶ 40, 43.) At the Workers' Compensation hearing, medical evidence showed that Plaintiff had a history of allergic rhinitis, receiving allergy shots, and Gastroesophageal Reflux Disease ("GERD"). (Defs.' Am. 56.1 Stmt. ¶ 42.) Ultimately, the New York State Workers' Compensation Board disallowed Plaintiff's claim. (Defs.' Am. 56.1 Stmt. ¶ 43.)

By letter dated December 19, 2008, Dena Miller DeFranco, the DPW Deputy Commissioner, informed Plaintiff of her termination under Section 71 of the New York State Civil Service Law. (Defs.' Am. 56.1 Stmt. ¶ 41.) However, after the New York State Workers' Compensation Board's decision, DPW withdrew its December 19, 2008 termination letter and put Plaintiff on notice that her employment may be terminated pursuant to Section 73 of the New York State Civil Service Law due to her continued absence from work for a year or more. (Defs.' Am. 56.1 Stmt. ¶ 47.) Plaintiff was also given the opportunity to discuss her termination at a February 5, 2009 meeting. (Defs.' Am. 56.1 Stmt. ¶ 47.) Plaintiff attended the February 5, 2009 meeting, but by letter dated February 18, 2009, DPW informed Plaintiff of her termination. (Defs.' Am. 56.1 Stmt. ¶¶ 48-49.)

Plaintiff had the opportunity to return to work upon examination by a medical officer selected by the Commissioner, but she never made such an application. (Defs.' Am. 56.1 Stmt. ¶¶ 49-51.) Plaintiff asserts that she tried to request that an appointment be set up, but that the letters she received did not inform her of how to go about doing so. (Pl.'s Am. 56.1 Counterstmt. ¶ 46.)

Currently, Plaintiff has raised claims against Defendants pursuant to the Americans with Disabilities Act ("ADA") and the New York State Human Rights Law ("NYSHRL").

DISCUSSION

Defendants now seek summary judgment. The Court will first address the applicable legal standard before turning to Defendants' arguments more specifically.

I. Legal Standard

Summary judgment is only appropriate where the moving party can demonstrate that there is "no genuine dispute as to any material fact" and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers "the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) (citation omitted); see also FED. R. CIV. P. 56(c)."In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 218 (1986). "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). And "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), superseded by statute on other grounds as stated in Ochei v. Coler/Goldwater Mem'l Hosp., 450 F. Supp. 2d 275, 282 (S.D.N.Y. 2006).

II. Defendants' Motion

Defendants seek summary judgment, arguing that: (1) Plaintiff's failure to accommodate claim under the ADA fails,(2) Plaintiff's discrimination claim under the ADA fails, (3) Plaintiff's hostile...