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SHARP v. ABATE

June 19, 1995

ROBERT SHARP, ROBERT BRUNO, SHEILA BOND, TRACEY WADDY, LOUIS SWEET, VANICE LINDSEY, REATHA JONES, KAREN SESSOMS, and JOSEPH TARGIA, Plaintiffs, against CATHERINE M. ABATE, New York City Correction Commissioner, et al., Defendants.


The opinion of the court was delivered by: LEWIS A. KAPLAN

 LEWIS A. KAPLAN, District Judge.

 The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"), prohibits employment discrimination against persons with disabilities who are able to perform the essential functions of their jobs, either with or without reasonable accommodation. The New York City Department of Correction (the "Department") has terminated, or seeks to terminate, plaintiffs from their positions as correction officers because each suffers from a physical or emotional condition that allegedly renders each incapable of having contact with prison inmates. Plaintiffs charge that the Department's actions are discriminatory and violate the ADA. Defendants argue that their efforts to terminate plaintiffs are justified because the ADA does not require an employer to continue to employ individuals who cannot perform the essential functions of a job. Defendants argue further that if this were required a great financial hardship would be imposed on the city. The overriding issue presented on defendants' motion for summary judgment thus is whether contact with prisoners is an essential function of the job of a correction officer. There are also issues specific to several of the plaintiffs. *fn1"

 Facts

 Position of Correction Officer

 It is undisputed that the duties of correction officers employed in the New York City Department of Correction include activities requiring contact with prisoners. In fact, the Department's written job description for the position of correction officer states that an officer "maintains security within correctional facilities and is responsible for the custody, control, care, job training and work performance of inmates." (See Daly Dec. Ex. C) The "typical tasks" of an officer are described as "maintaining constant watch over and supervising activities of detainees. . . , enforcing maximum security [and] performing tours in cell blocks, dormitories or other housing units." (Id.) Furthermore, a former general counsel for the Department of Correction states that "the essential functions of the position of correction officer require close contact with inmates." (Daly Dec. P 12)

 It is clear from the evidence in the record that the Department considers the custody, control and care of inmates an essential function of the job. It is equally clear, however, that the actual duties of many correction officers involve no inmate contact. Non-contact positions exist in many areas of the Department's prisons -- for example, in the central control room, in personnel, at the custody desk, entrance security, general office and cashier, among many others. (See Dubose Dep. at 39-46, Schwager Aff. Ex. B) Furthermore, positions involving no contact with inmates exist also within the several administrative divisions of the Department.

 Assignments of Correction Officers

 The collective bargaining agreement between the City of New York and the correction officers' union provides that all incapacitated correction officers "shall be entitled to leave with pay for the full period of any incapacity." *fn2" Correction officers with physical or mental impairments who are not able to work in full duty positions therefore are placed by the Department into one of three so-called Medically Monitored Return ("MMR") categories. Officers in Level I of the MMR categories have "overtime and tour restrictions." Those in MMR II have some physical limitations and cannot supervise inmates alone. Those in MMR III have more serious physical or psychological limitations. (See Daly Dec. Ex. D) The assignment of officers to MMR categories is a method by which the Department utilizes incapacitated correction officers who, pursuant to the collective bargaining agreement, are paid full salaries and accrue all benefits during the period of their disability. The Department maintains that placing officers in one of the MMR categories is not intended to be permanent but rather is meant to accommodate incapacitated officers until the officers are able to return to full duty status.

 Officers in MMR categories often fill positions requiring no inmate contact. These non-contact positions, however, were not created to accommodate medically monitored correction officers (Dubose Dep. at 69, 46), but rather are "regular" positions that have existed within the Department which are filled by able-bodied correction officers, at least on occasion. (Id. at 46-47) In fact, some correction officers are assigned directly to clerical, non-contact positions upon completing their training in the academy. (Israel Dep. at 10-11, Schwager Aff. Ex. E)

 Hardship

 Defendants assert that there is a substantial financial burden on the Department as a result of maintaining officers who cannot supervise inmates in an MMR category. They claim that placing correction officers in MMR status results in the Department's financially inability to fill positions for full duty officers. This, in turn, leads the Department to incur overtime costs averaging approximately $ 16 million per year. Defendants claim that, in addition to the financial burden, there are morale problems among correction officers when the Department requires them to work overtime -- presumably as a result of some budgeted positions being filled with non-contact personnel -- in order to fill essential posts within correctional facilities.

 The Proceedings

 The Department discharged plaintiffs Joseph Targia and Karen Sessoms each of whom was a probationary correction officer and had spent more than one year in an MMR category. The Department initiated proceedings under New York Civil Service Law §§ 71-73 to remove from the Department's payroll plaintiffs Sheila Bond, Tracey Waddy, Vanice Lindsey and Reatha Jones, ...


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