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MCNILL v. NEW YORK CITY DEP'T OF CORRECTION

November 27, 1996

MICHELE MCNILL, Plaintiff, against THE NEW YORK CITY DEPARTMENT OF CORRECTION, CATHERINE ABATE, CORRECTIONAL COMMISSIONER, AND THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: PITMAN

 PITMAN, United States Magistrate Judge:

 I. Introduction

 Michele McNill, a New York City Department of Correction employee, brings this action against her employer and the City of New York, alleging that defendants discriminated against her in violation of the Pregnancy Discrimination Act by withdrawing certain benefits as a result of absences from June through November 1991. Plaintiff also alleges that defendants' actions deprived her of a property interest without due process of law.

 Pursuant to 28 U.S.C. § 636(c), the parties have stipulated that this matter be referred to a Magistrate Judge for all purposes.

 Defendants have moved for summary judgment. For the reasons set forth below, defendants' motion is granted and plaintiff's complaint is dismissed.

 II. FACTUAL CONTENTIONS

 A. Plaintiff's Pregnancy and Subsequent Leave

 As set forth in the complaint and the papers submitted in connection with the pending motion, Ms. McNill began her employment as a Correction Officer with the New York City Department of Correction (the "Department") on March 21, 1983. In September 1990, Ms. McNill was hospitalized for two days due to complications in the early stages of her pregnancy. At the advice of her obstetrician and with the approval of her employer's Health Management Division (HMD), Ms. McNill stopped working to prevent a miscarriage and was placed on sick leave.

 On April 19, 1991, Ms. McNill's son was born with a cleft palate and lip. Plaintiff contends that she had to breast-feed her son prior to his corrective surgery in September 1991 and for several weeks thereafter due to his medical condition (Plaintiff's Exh. A, McNill Affidavit at P 8). Ms. McNill states that her absence for this period of time was "based upon the birth of [her] child and the life sustaining breast-feeding [she] was required to provide for him." (McNill Aff. at P 13).

 On June 13, 1991, Ms. McNill met with HMD physician Dr. George Lum for an assessment of her fitness to return to work. Dr. Lum concluded that Ms. McNill was physically fit to return to work, but should be evaluated for emotional problems (Defendants' Exh. 8).

 About one month later, Ms. McNill was evaluated by Marsha Stern, an HMD psychologist. Ms. Stern's notes (Defendants' Exh. 7) of her July 1991 meetings with Ms. McNill state:

 
7/1/91: CO [Correction Officer] presents with sadness, tearfulness, sleep and appetite disturbance[s] related to marital separation and subsequent premature birth of son with cleft palate. Son is 2 mos. old and requires breast-feeding. He is scheduled for surgery on 7/16/91. CO has [history] of abusive relationship with alcoholic husband and has minimal support [illegible]. Suicidal/homicidal ideation denied. Substance abuse denied [illegible]. CO has referral for [counselor] from HIP. Documentation requested. She agrees to resume attendance at Alanon. Continue sick leave. Review three weeks.
 
7/29/91: CO reports additional medical problems with son resulting in delaying of surgery. She therefore has to continue breast-feeding. CO experiencing increased dysphoria *fn1" due to concerns re health and son. [Illegible] She is scheduled to see HIP counselor on 8/12. [Illegible] Discussed possible child care leave in future. Continue sick leave. Review 1 month.

 Ms. McNill was evaluated on August 28, 1991, by Mr. Milton Smith, a HIP Social Worker who determined that Ms. McNill was having emotional and family problems but could return to full duty (Defendants' Exh. 10). This evaluation was not submitted to HMD until October 18, 1991, despite Ms. Stern's repeated requests at Ms. McNill's monthly follow-up visits (Defendants' Exh. 9, at P 15). Ms. McNill's sick leave was continued by Ms. Stern based on her emotional problems -- moodiness and unhappiness due to her son's health condition ( Defendants' Exhs. 7, 9 P 15). However, once Ms. Stern received the HIP evaluation, she removed Ms. McNill from sick leave and placed her temporarily on "medically monitored status", which limited her duties to tasks that did not require the supervision of inmates (Defendants' Exhs. 7, 9, at P 17).

 B. Plaintiff's Return to Work

 Ms. McNill returned to work on November 18, 1991.

 In accordance with the collective bargaining agreement, covering Ms. McNill, uniformed employees of the Department of Correction such as plaintiff, are given unlimited paid sick leave (Defendants' Memorandum of Law at 2). To prevent abuse of this policy, employees who report sick for any reason except hospitalization, on twelve or more work days within a twelve month period are classified in "chronic absence Category B" for six months. This classification subjects them to the loss or revocation of "discretionary" *fn2" benefits such as assignment to a steady tour, access to voluntary overtime, promotions and secondary employment (Defendants' Exh. 13). Employees are given written notification when they are placed in Category B and may appeal that decision (Id.).

 However, pregnancy related absences, defined by the Department as absences that occur when an officer is pregnant or as a result of the condition of being pregnant (Defendants' Exh. 14, XII), as well as a six-week maternity leave, (Defendants' Exh. 15) are not counted towards an employee's absentee status (Defendants' Exh. 16 at P 1). Thus, pregnancy related absenteeism is not a factor in determining excessive absenteeism and will not result in a Category B classification regardless of length.

 In determining Ms. McNill's absentee status, the Department excluded her absences during the period she was medically disabled due to pregnancy complications as well as her six week maternity leave (from September 1990 until June 17, 1991). Absences after June 17, 1991 -- the day her obstetrician determined she was medically fit to return to work -- through November 18, 1991 -- the date Ms. McNill actually returned to work -- were treated as regular sick leave, unrelated to her pregnancy, and resulted in Ms. McNill's being placed in Category B.

 On January 20, 1992, Ms. McNill first learned of her Category B status when she was denied permission to take Martin Luther King Day as a paid holiday (McNill Aff. at P 12, Defendants' Exh. 21). Ms. McNill appealed her Category B designation contending that her absence from June through November 1991 to breast-feed her child was pregnancy related and therefore, in accordance with the Department's policy, it should be excluded in determining her absentee status (Plaintiff's Exh. A, McNill Aff. P 13). Her case was reviewed by Captain Rodriguez and Deputy Warden Lasser. Both recommended to Robert Wangerstein, Deputy Chief of Security, that Ms. McNill's appeal be denied due to her extensive absence history throughout her employment. Ms. McNill's appeal was denied on February 24, 1992 (Defendants' Exh. 25).

 Ms. McNill continued to be sporadically absent throughout February 1992 (absent February 14, 19 and 25; Defendants' Exh. 29) and on March 2, Ms. McNill was given a corrective interview from Captain Rodriguez who reminded her of the ...


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