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January 29, 1998


The opinion of the court was delivered by: PARKER



 Plaintiff, Lawrence Mitchell, an amputee, and the former head custodian at the Washingtonville High School, claims that by failing to afford him a "reasonable accommodation" for his disability, the Washingtonville Central School District violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. ยง 12101 et seq.

 Mitchell finds himself in a difficult position: to maximize his chances for (perhaps badly needed) disability and social security benefits, he must emphasize the debilitating nature of his impairment and prove to the Social Security Administration ("SSA") and the Workers' Compensation Board his inability to work. But to succeed on his ADA claim, he must turn 180 degrees and contend that, notwithstanding his disability, he could perform his job if only offered a "reasonable accommodation." For the reasons that follow, the Court concludes that Mitchell is estopped to make this turn and that the defendant's motion for summary judgment should be granted.

 A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619.

 In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996); Hayes, 84 F.3d at 619; Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988). With these standards in mind, the following facts are assumed for purposes of this motion.


 Mitchell's right leg was amputated above the knee following an automobile accident in 1977. In 1987, he began working as Head Custodian for Washingtonville High School, having taken and passed the Civil Service exam for Head Custodian while working as a custodian for the McNally School in Goshen, New York. At the time he took the Civil Service examination, plaintiff considered himself capable of performing all of the physical tasks described in the relevant job specification and so stated during his interview for the job. Head Custodian positions are district-wide positions and the District could, in its discretion, reassign Head Custodians among the various schools in the District.

 The relevant job specification for Head Custodian provides in part:

This is important work involving responsibility for supervising and performing routine building cleaning and semi-skilled maintenance tasks. Work is carried out in accordance with established procedures and involves the general supervision, care, maintenance and protection of a school building which may include the efficient performance of a variety of groundskeeping activities.

 Under "typical work activities," the classification lists:

Supervises and performs a variety of daily cleaning chores such as sweeping, dusting, waxing, mopping, window washing, etc.; Supervises and makes minor repairs to furniture, equipment and building such as replacing broken windows, replacing light bulbs and fuses, repairing door latches, adjusting seats and desks, etc.;
Plans and schedules work assignments for regular cleaning and maintenance of buildings;
May be responsible for or assist in grounds keeping activities such as mowing lawns, cultivating trees and shrubs, collecting paper and rubbish, removing snow, etc.;
May operate and perform maintenance on heating and ventilation systems;
Ensures that adequate supplies of soap, toilet paper, towels, etc. are available and placed in proper holders at all times;
May perform a variety of miscellaneous activities consistent with the effective operation of a school building such as ensuring clocks are regulated for proper time, oiling and greasing mechanical equipment, inspecting roof, delivering packages, storing supplies, acting as nightwatchman, etc.

 Plaintiff described the essential functions of his job as follows:

Supervising and performing daily cleaning chores such as sweeping, dusting, mopping, window washing, supervising and making minor repairs to furniture, equipment and parts of the building such as replacing broken windows, light bulbs, fuses, door latches, adjusting furniture, et cetera, planning and scheduling work assignments for regular cleaning and maintenance of the building. May be responsible for or assistance in [sic] the grounds keeping, may operate and perform maintenance on the HV system, keeping adequate supplies of soap, toilet paper, paper towels, tissues, that sort of thing, cleaning supplies, delivering packages, inspecting the building, inspecting the grounds, inspecting the roof, making security checks and in addition to that, noticing correct cleaning practices and some of the maintenance practices, so that the subordinates could be trained properly.

 Plaintiff acknowledged that when he was first hired as Head Custodian, he typically spent two hours each day doing office work at his desk, taking a fifteen minute coffee break and a half hour lunch break. Other than that, he spent the remainder of his 8 1/2 hour day on his feet performing his various duties.

 Starting in 1989, plaintiff spent less time engaged in clerical duties, spending three days each week (except for his coffee and lunch breaks) entirely on his feet. This was consistent with the amount of time the custodians under plaintiff's supervision remained on their feet.

 As far as his work during this period was concerned, plaintiff contends that he did not always perform all of the activities described as "typical" in the Head Custodian job description. For example, he did not clean the upper levels of windows or replace light bulbs because he could not climb ladders, and he did not routinely clean classrooms or assist floor crews. In any event, Mitchell acknowledges that at work he spent considerable time on his feet and that many of the duties of the Head Custodian could not have been performed from a sitting position. *fn1"

 Within four months after plaintiff began working at the High School, he experienced swelling and pain in his stump. On June 8, 1987, after two days of swelling and pain, he was examined by an orthopedic physician, Dr. Robert Kulak, who diagnosed swelling and swollen glands in plaintiff's groin, drained fluid from his stump, and put him on antibiotics. In September 1987, plaintiff again experienced swelling and was treated by Dr. Kulak's partner, Dr. Mayefsky. Fluid was again drained from plaintiff's stump. Following these treatments, plaintiff was unable to wear his prosthesis for a period of time. Several years later, in October 1991, Dr. Kulak again examined plaintiff, this time because of a painful lump on the outside of his stump. Dr. Kulak drained a "yellowish turbid fluid from his stump" and told plaintiff not to wear his prosthesis until the end of November 1991.

 Plaintiff's problems with his stump were caused by the need to wear and use his prosthesis at work. Because the Head Custodian job required extensive physical activity, plaintiff suffered approximately three skin breakdowns on his stump each year for three to four days each time. When this happened, plaintiff would wear his prosthesis only at work. Plaintiff contends that he would take occasional sick leave as a result of his problems, which would be reported to the District's Personnel Department and to his immediate supervisor. Plaintiff also contends that on a few occasions, James Rathbun, the District's Assistant Superintendent for Business Affairs, and Samuel Black, the High School Principal, told plaintiff that they would regard any complaints by him concerning his amputated leg as "insubordination."

 In 1993, the High School expanded to about twice its previous size. This expansion greatly exacerbated plaintiff's problems with work: after the expansion, plaintiff's job required considerably more walking and physical labor, causing plaintiff significant additional trouble with his stump. On November 5, 1993, plaintiff worked a twelve hour day, at the end of which he moved cafeteria furniture. Since all of the day's activity required him to stand, his leg began to drain, causing considerable pain. The following Monday, November 8, 1993, the plaintiff stopped reporting to work. He subsequently reported to the District that he had been injured on the job.


 Around January 6, 1994, plaintiff filed an Employee Claim for Compensation with the New York Workers' Compensation Board. On the claim form, plaintiff stated that he had been injured on November 5, 1993 and could not work: "Because of strenuous walking claimant developed a wound and abcess [sic] on right leg where prostices [sic] and leg meet." On February 8, 1994, the District controverted plaintiff's claim, contending that "no accident within the meaning of the law" had occurred, and questioning whether plaintiff's disability arose "in and out of the course of employment."

 On June 22, 1994, Workers' Compensation Law Judge Robert Gaffigan held a hearing on plaintiff's claim, at which plaintiff was represented by counsel. At the hearing, plaintiff testified that his Head Custodian job required him to walk "quite extensively" and also required "a lot of physical labor." Plaintiff stated that with the exception of emergencies, he could not delegate his responsibilities to his staff. He also described the circumstances of the "accident" that occurred on November 5, 1993.

 On October 20, 1994, Dr. Kulak's office issued an Attending Doctor's progress report to the Workers' Compensation Board based on an October 6, 1994 evaluation of plaintiff. In that report, Dr. Kulak indicated by placing an "x" in the appropriate box that plaintiff was suffering a "total disability," that plaintiff's stump was satisfactory, his new prosthesis was "OK," and plaintiff could work in a sitting position. *fn2"

 In a decision dated November 4, 1994, Judge Gaffigan found that plaintiff had suffered an injury to his right leg stump and medial thigh on November 5, 1993. He awarded the plaintiff $ 362.97 as a tentative rate for total disability for November 9, 1993 to July 27, 1994, pending establishment of a permanent average weekly rate. The District objected to this decision on the grounds of, inter alia, the degree of disability.

 On February 26, 1995, the Workers' Compensation Board affirmed Judge Gaffigan's decision, holding that the plaintiff was "totally disabled" from November 9, 1993 to July 27, 1994 and declining to hear additional medical testimony on the issue. In support of its decision, the Board cited Dr. Kulak's reports of his medical examinations of plaintiff from January 20 through October 6, 1994, which indicated that plaintiff was "totally disabled." The Board also cited reports of Dr. Roger Newman, the District's consultant, who stated on April 27, 1994 that plaintiff "remains fully disabled at this time for any activities that require ambulation with prosthesis on the part of the patient." In a subsequent June 6, 1994 report, Dr. Newman noted:

it is within the realm of possibility that this patient could return to his supervisory activities using a wheelchair or crutches and could function exclusively in a supervisory capacity involving only those items which did not require climbing and other types of activity on his part that would require the use of both legs.

 On November 23, 1994, Dr. Newman submitted another report to the administrator of the District's Workers' Compensation insurance program. While stating that plaintiff was "able to work at the present time and is no longer disabled," Dr. Newman cautioned against a return to plaintiff's former position:

It must be said that if he attempts to return to the present job that he will be at serious risk for breakdown of skin of the right stump and will essentially reverse all that has been accomplished over the preceding many months, in the way of healing of the skin breakdown of the right above knee amputation stump.
To phrase the situation in another way, had the building been of the size and extent that it is today, at the time that the patient initially took the job, then the patient at that time would have found that the job was beyond his ability ...

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