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HARDY v. VILLAGE OF PIERMONT

May 3, 1996

DONNA M. HARDY, Plaintiff, against THE VILLAGE OF PIERMONT, NEW YORK and THOMAS GAYNOR, personally and in his official capacity as CHIEF OF POLICE OF THE VILLAGE OF PIERMONT, NEW YORK, Defendants.


The opinion of the court was delivered by: CONNER

 Conner, Sr. D.J.:

 Plaintiff brings this action pursuant to 42 U.S.C. § 1983; the Federal Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; and the New York Civil Service Law, N.Y. Civ. Serv. §§ 72, 73. Plaintiff has moved for partial summary judgment, and defendants have cross-moved for summary judgment on all claims. For the reasons discussed below, plaintiff's motion is denied; defendants' motion is granted.

 BACKGROUND

 The following facts are undisputed. Plaintiff Donna Hardy ("Hardy"), at times relevant to this action, held a tenured civil service position as a police officer with defendant Village of Piermont, New York (the "Village"). Defendant Thomas Gaynor ("Gaynor"), at times relevant to this action, was the Police Chief of the Village's police department. In November 1982, plaintiff was diagnosed with Crohn's disease, a gastrointestinal disorder. She was treated by a licensed physician who administered corticosteroid medication to alleviate inflammation. In November 1993, plaintiff became unable to perform her police duties because of a condition diagnosed by her treating physician as necrosis of the tibias in both legs. Plaintiff was informed that the corticosteroid medication had weakened her tibias to the degree that they could fracture or shatter under the stress of running or prolonged walking. Her physician advised her that the prognosis for recovery was uncertain and that she could not perform full police duties until the necrosis abated.

 Primarily due to plaintiff's chronic illness, between March 1, 1982 and December 31, 1993, plaintiff utilized 490.5 sick days. Def. Gaynor's Cross-Motion for Summary Judgment, Ex. C ("Gaynor Brief"). During this same period, but prior to 1992, plaintiff was permitted to use an additional 113.5 "sick leave days" to which "she was not legally entitled." Gaynor Brief P 3; see id., Ex. D.

 On January 7, 1994, plaintiff was informed by letter from defendant Gaynor that she had "no further time of any kind on the time book to be used as sick leave" and that the Village Board had decided not to approve additional sick leave at that time. Pl.'s Motion for Summary Judgment, Ex. B ("Pl. Brief"). Thus, plaintiff was placed on medical leave of absence without pay. Id. The letter informed plaintiff that the Village Board had granted her continued medical coverage which was subject to periodic review. Id. Gaynor also indicated in that letter that he would forward plaintiff's request for additional sick leave to the Village Board for consideration at the next meeting scheduled for January 11, 1994. Plaintiff alleges that on January 24, 1994, Gaynor summoned her to the police station and demanded that she turn in her official police shield, identification card, service weapon, personal off-duty weapon, and keys to the police station. Compl. P 20. Plaintiff avers that "he also informed plaintiff that she was no longer a member of the Piermont Village Police Department, and prepared a notice to that effect which was posted in police headquarters and also sent to the Rockland County Law Enforcement Communications Center." Pl. Brief, at 2.

 On November 9, 1994, plaintiff's attorney wrote a letter to Gaynor advising him that his actions in placing plaintiff on unpaid medical leave violated state civil service laws, and demanding that Gaynor "accommodate her physical disability with a temporary light or limited duty assignment, as recommended by her treating physician." Pl. Brief, Ex. C. By letter dated November 23, 1994, the attorney for defendant Village refused to restore plaintiff to active duty based upon the medical evidence submitted by plaintiff's own treating physicians: "In view of the medical evidence submitted to the Village of Piermont by Officer Hardy's own treating physicians, it would be totally improper and reckless for Chief Gaynor and the Village Board to restore her to duty at this time. Based upon the medical evidence, such action would jeopardize not only the public at large but Officer Hardy as well." Pl. Brief, Ex. D. Plaintiff's request for a limited or light duty assignment was refused on the ground that no such assignment was available within the department. Id. Plaintiff then submitted to the Village her physician's approval for her placement on "light duty as a police officer," meaning "no running at all or walking great distances," Pl. Brief, Ex. E, at 3, and again requested accommodation. Plaintiff avers that the Village again advised plaintiff's attorney during a February 10, 1995 telephone conversation that the Village would not accommodate plaintiff. Pl. Brief, at 3.

 Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on April 10, 1995, alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq. As of the time of the filing of this action on May 11, 1995, the EEOC proceeding had not been resolved. The present action asserts claims under 42 U.S.C. § 1983 for violation of plaintiff's due process and equal protection rights under the Fifth and Fourteenth Amendments; the Federal Rehabilitation Act ("FRA"), 29 U.S.C. § 701 et seq.; and state law.

 Plaintiff has moved for partial summary judgment on her claim that defendants deprived her of a property interest without due process of law (the § 1983 claim). Defendants have moved for summary judgment dismissing all claims on the grounds that (1) plaintiff was not terminated from employment and therefore was not deprived of any property interest (the § 1983 claim), (2) plaintiff is not entitled to be accommodated with a "light duty" position in the department (the FRA claim), and (3) there is no genuine issue of material fact as to plaintiff's state law claims.

 DISCUSSION

 The movant bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any," that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant meets this initial burden, the party opposing the motion must then demonstrate that there exists a genuine dispute as to the material facts. Id. To show such a "genuine dispute," the opposing party must come forward with enough evidence to allow a reasonable jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Defendants do not dispute that plaintiff had a property interest in her position as a police officer. Nor do defendants dispute that plaintiff was not afforded a pre-termination hearing. There is also no dispute that she was placed on unpaid medical leave after she "used up" her "sick days." Defendants maintain, however, that plaintiff was not terminated and therefore was not deprived of any property interest. Furthermore, defendants argue that placing plaintiff on medical ...


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