In sum, the court cannot say as a matter of law whether heavy lifting is an essential function of the laborer job, what constitutes heavy lifting, or whether plaintiff was capable of performing that function.
2. Reasonable Accommodation By Employer
The foregoing analysis is not the only nail in this summary judgment coffin. Defendants' motion for summary judgment also fails with regard to the second step of the Arline test. That is, even if the court were to assume that shoveling and heavy lifting are essential functions of the laborer position, and that plaintiff could not perform these functions, the next step in the analysis requires the court to evaluate whether the employer could reasonably accommodate plaintiff under established standards.
The court recognizes that while reasonable accommodation "may include such adjustments as modification of physical facilities, work schedules, or equipment, or some job restructuring," see 45 C.F.R. § 84.12(b), it does not entail the elimination of any of the job's essential functions." Gilbert, 949 F.2d at 642 (citing cases).
However, "job restructuring" may include the shifting of nonessential duties to other employees. 45 C.F.R pt. 84, Appendix A, p. 383 (1992). Here, the evidence suggests that some of plaintiff's duties as a laborer were in fact shifted to other employees, while plaintiff was given alternative tasks to perform. As already noted, whether these shifted tasks were essential or nonessential is an issue of fact that remains unresolved.
Also, while an employer is not required to find another job for an employee who is not qualified for the job he was doing, the employer cannot deny an employee alternative employment opportunities reasonably available under he employer's existing policies. Arline, 480 U.S. at 288, n.19, 107 S. Ct. at 1131, n.19. There is more than ample evidence to suggest that pursuant to established standards, the Highway Department accommodated plaintiff, as well as other Highway Department employees, for several years by assigning duties which reasonably accommodated their alleged disabilities (See Guiliano Aff. 07/ 93 P 2-4; Rowley Aff., Exh. "A"). Likewise, there is some evidence to suggest that defendant Roberts continued to accommodate plaintiff's disability -- albeit for a short time -- after he succeeded Guiliano as Superintendent (Roberts Dep. 44, 50-55; Answer P 11); Henchey Aff. 07/ 93 P 4.).
It is undisputed that plaintiff was assigned duties which included sweeping the garage and performing other maintenance work around the garage." (Pltf. Exh. "H" at 5; see also Roberts Dep. 36, 44, 45, 50-51).
Finally, the court finds that there is a genuine question of fact as to whether such restructuring of plaintiff's position has caused or would cause any hardship or substantial adjustment in the operation of the Highway Department.
The pertinent regulations parrot the Act by requiring that all recipients of federal funds "make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can make demonstrate that the accommodation would impose an undue hardship on the operation of its program." 45 C.F.R. § 84.12(a) (1992) (emphasis added).
Because plaintiff has proffered some evidence as to his individual capabilities, as well as suggestions for some reasonable assistance or job modification by defendants, defendants bear the burden of showing that such continued accommodation would impose undue hardship. They have failed to do so.
On the other hand, plaintiff has offered evidence to suggest that the defendants' accommodation of plaintiff's alleged disability did not cause any undue financial or administrative burdens on the Highway Department (Guiliano Aff. 07/ 93 P 5). Further, as noted, plaintiff submits evidence to indicate that such accommodations were part of a longstanding Highway Department policy. Whether such accommodation was reasonable, and continues to be reasonable, must be determined by the trier of fact in light of all the surrounding circumstances.
B. Failure to Exhaust Administrative Remedies
Defendants also contend that plaintiff was required to exhaust his administrative remedies prior to commencing this action. This argument is without merit. The cases cited by defendants are clearly distinguishable as they apply specifically to handicap discrimination by the federal government under section 501 of the Act. See Prewitt v. U.S. Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981) ("Prewitt I"); Prewitt v. U.S. Postal Serv., 662 F.2d 311, 314 (5th Cir. 1981) ("Prewitt II"); Williams v. Casey, 691 F. Supp. 760, 767 (S.D.N.Y. 1988); 29 U.S.C.A. § 791 (1985).
More recent New York case law, addressing a private right of action under section 504 of the Act, mandates a different conclusion. A majority of courts addressing this issue have declined to require the exhaustion of administrative remedies. See e.g., Rothschild v. Grottenthaler, 716 F. Supp. 796, 800-801 (S.D.N.Y.), aff'd in part, vacated in part, 907 F.2d 286, 290 (2d Cir. 1990) ("section 504 of the Rehabilitation Act, unlike Section 501 . . ., does not explicitly require the exhaustion of administrative remedies"); Philipp v. Carey, 517 F. Supp. 513, 520 (N.D.N.Y. 1981) ("unavailability of meaningful administrative channels exempts a litigant's claim under this section from an exhaustion requirement"); Klein v. Albro, 81-CV-1288, slip op. (N.D.N.Y. 1982) (and cases cited therein); Sherry v. New York State Educ. Dep't, 479 F. Supp. 1328, 1333-34 (W.D.N.Y. 1979); but see Gilbert, 949 F.2d at 638 (dicta) (both of plaintiff's prior actions "were dismissed for failure to exhaust administrative remedies . . . Though there remained some question as to exhaustion [on plaintiff's third action], the district court concluded that . . . the court should reach the merits of his claims").
The court adopts the reasoning contained in those cases holding that exhaustion of administrative remedies is not required.
C. Collective Bargaining Agreement
Finally, defendants submit the affidavit of Gregory Davis, a CSEA labor relations specialist, in support of their contention that the establishment of a clerical job for plaintiff would usurp the rights of other employees under the collective bargaining agreement between the CSEA and North Greenbush. They argue that before plaintiff would be entitled to a clerical position, he would have to take an appropriate exam and compete with other civil service applicants. Alternatively, defendants argue that if the position were non-competitive, it would be up to the union to bargain for a rate of pay and the position would be filled based upon seniority. While this argument has some surface appeal, the court does not find it to be dispositive here.
Defendants have failed to identify any provision of the collective bargaining agreement which might limit the right of North Greenbush to add new positions to the Highway Department or to modify the job responsibilities of its employees. Plaintiff, on the other hand, points to Article 17, section 1 of the collective bargaining agreement which provides that
"All existing . . . practices and general working conditions previously granted and allowed by the employer unless specifically excluded by this agreement shall remain in full force and effect during the life of this agreement . . ."
(R. Rowley Aff. P 4; R. Rowley Aff. Exh. "A" at 9). Given the paucity of authority cited by either party on this issue, the court finds that there is a issue of fact as to whether defendants' purported policy of accommodating plaintiff's alleged disability falls within the ambit of the collective bargaining agreement.
D. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate only when "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(c). If the moving party can establish that no genuine question of material fact exists and that it is entitled to judgment as a matter of law, the burden shifts to the non-movant to come forward with a similar response setting forth "specific facts showing that there is a genuine issue for trial," absent which summary judgment will be granted. The opposing party "may not rest upon the mere allegations or denials of [his] pleading", Fed.R.Civ.P.56(e), but rather must present "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Defendants have not met their threshold burden of demonstrating that no genuine issue of material fact exists.
Even had defendants done so, plaintiff, as the non-movant here, has come forward with "specific facts showing that there is a genuine issue for trial." As noted, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party, Cruden, 957 F.2d at 975; Ramseur, 865 F.2d at 465, and may grant summary judgment "only when reasonable minds could not differ as to the import of the evidence . . ." Bryant, 923 F.2d at 982. Moreover, the Second Circuit has recently reiterated the court's limited role on summary judgment:
The district court's role [on a summary judgment motion] -- and our role on appeal -- requires the court not to resolve disputed issues of fact itself, but rather to see if there are issues of fact to be resolved by the factfinder at trial. That is to say, when examining the record before it to see if there are any genuine issues of material fact, the court's focus is on issue-finding, not on issue-resolution.