The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff Valerie Sacay brings this action against the Research
Foundation of the City University of New York, the City University of New
York, Brooklyn College, Assistant Dean for Brooklyn College Christine
Persico, and Director of the Office of Adult and Continuing Education at
Brooklyn College Mary Rose Morris for discrimination and retaliation
under the American with Disabilities Act ("ADA"),
42 U.S.C. § 12101-12117; the Rehabilitation Act of 1973,
29 U.S.C. § 701 et seq.; the New York State Human Rights Law
("NYSHRL"), Executive Law §§ 296 et seq.; the New York City Human
Rights Law ("NYCHRL"), Administrative Code of the City of New York §
8-107; and 42 U.S.C. § 1983. Defendants Research Foundation of the
City University of New York and Mary Rose Morris move for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) on all of the
claims against them, which, plaintiff clarified on oral argument, do not
include those brought under Section 1983. On oral argument of the
motion, the remaining defendants City University of New York, Brooklyn
College, and Christine Persico requested permission to join
in the motion and to rely exclusively on the arguments presented by
defendants Research Foundation and Mary Rose Morris. Finally, plaintiff
has requested leave to amend the complaint in the event defendants'
motion is granted.
The following facts are taken from plaintiffs complaint.
Plaintiff Valerie Sacay was hired as an administrative assistant by
defendant Research Foundation of the City University of New York on May
1, 1989 to work at the Office of Adult and Community Education (now the
Office of Adult and Continuing Education). Her primary responsibility was
the design and production of the Adult Community Education Catalog. She
was promoted to the position of Research Assistant B on July 2, 1994,
which entailed the additional responsibilities of developing and upgrading
a computerized registration program, creating and managing new
databases, and supervising data entry personnel. Between March 1992 and
December 1994, plaintiff performed some of her responsibilities from her
home with the use of a computer and printer provided by defendants.
Plaintiffs work at home was for the convenience of defendants, and she
also worked on a flexible schedule to accommodate defendants' work
demands. Complaint at ¶ 16.
In December 1994, plaintiff took sick leave from her job. Although she
was using her accrued sick leave time, her supervisors, defendants
Christine Persico and Mary Rose Morris, placed a number of "harassing"
telephone calls to her during her leave. Plaintiff does not specify what
was said during these calls, but alleges that the calls caused her blood
pressure to rise to "dangerous levels," requiring her to see a
cardiologist on two occasions in January 1995, and to be hospitalized for
stress related chest pain. Complaint at ¶ 17.
As for her physical impairments, plaintiff lists a number of medical
conditions. She was diagnosed with complex partial seizure disorder
(epilepsy) in 1986, a myocardial infaraction in 1992, and degenerative
disc disease of the cervical spine in 1993. Complaint at ¶ 14. In
January 1995 she was diagnosed with stress-related gastritis and spastic
colitis; which developed into acute irritable bowel syndrome, and in
March 1995 she was diagnosed with a duodenal ulcer and acute gastritis'
Complaint at ¶ 18. Plaintiff does not specify which of these stated
medical conditions rises to the level of a disability under the statutes
upon which she bases her present claims and requires accommodation by her
While plaintiff was still out on sick leave, defendant Persico informed
her on January 20, 1995 that she would not be allowed to return to her
position until she met with defendants. Complaint at ¶ 19. Plaintiff
notified defendants on March 17, 1995 of her intention to return to work
and requested that a "meeting be held to discuss her transition back to
work and her demand for reasonable accommodations." Complaint at ¶
Plaintiff alleges that she, was "medically ready" to return to work as
of May 1, 1995, but a meeting to discuss her return was not held until
May 24, 1995. Complaint at ¶ 19. In support of her ability to return
to Work, plaintiff faxed a letter on April 11, 1995 from Dr. Bernard B.
Yonk, her gastroenterologist, to the Office of Adult and Continuing
Education and to the Research Foundation. The letter indicated that
plaintiff would be able to return to work on May 1, 1995 on a schedule of
15 hours per week initially, and increasing by five hour increments each
week until she was eventually able to, resume a full-time schedule.
Complaint at ¶ 20. She also informed her of her ability to resume her
responsibilities with reasonable accommodations such as working from
home, on a computer and/or the use of flexible hours. Complaint at ¶
Plaintiff filed a complaint with the EEOC on July 11, 1995 and obtained
a right to sue letter. She filed this action on July 14, 1997.
"Judgment on the pleadings is appropriate where material facts are
undisputed and where a judgment on the merits is possible merely by
considering the contents of the pleadings." Sellers v. M. C. Floor
Crafters Inc., 842 F.2d 639, 642 (2d Cir. 1988). The standard of review
for a motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) is the same as for a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), See Sheppard v. Beerman,
18 F.3d 147, 150 (2d Cir. 1994). Accordingly, a court must accept the
factual allegations contained in the complaint as true and draw all
reasonable inferences in favor of the non-movant. See Walker v. City of
New York, 974 F.2d 293, 298 (2d Cir. 1992). A court may consider the
factual allegations and attached exhibits in the plaintiffs complaint,
statements or documents incorporated by reference in the pleadings,
matters subject to judicial notice, and documents that were relied upon
by the non-movant when bringing the action. See Brass v. American Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). A ...