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August 4, 2000


The opinion of the court was delivered by: Gershon, District Judge.


Gary Mazza was terminated as a probationary patrolman with the New York City Police Department ("NYPD") on February 25, 1993, after he had been out sick almost ten months with severe ulcerative colitis. He filed a claim of disability discrimination with the Equal Employment Opportunity Commission ("EEOC"), which rejected his claim on the ground that, although Mazza was disabled, he was not a qualified person with a disability because, at the time of termination, he could not perform the essential functions of his job as a police officer, with or without accommodation. (Def.Ex.H).*fn1 This action followed, naming as defendants several former NYPD Commissioners, the NYPD and an NYPD Pension Fund (referred to herein collectively as "NYPD" or "defendant"). The complaint alleges disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and the New York State Human Rights Law, N.Y.Exec.L. §§ 290 et seq. Plaintiff seeks reinstatement, back pay and benefits, and damages. Plaintiff also claims that he was wrongfully deprived of a pension and/or the opportunity to apply for a pension. Although the complaint is unclear as to whether the claims relating to the pension are based on federal as well as state law, plaintiff has explained in his memorandum and at oral argument of this motion that the claims are based on alleged violation of his rights under his contract and provisions of the New York State Constitution and state law, not the federal Constitution or statutes.

Defendant now moves for summary judgment on the ADA claim, on the grounds that plaintiff has not raised factual issues that he was disabled, qualified, wrongfully denied a reasonable accommodation, or improperly terminated. Defendant argues that plaintiff cannot establish: (1) that his condition substantially limited major life activities, as required to show a "disability" under the ADA; (2) that plaintiff could perform the essential functions of a police officer, with or without reasonable accommodation; and (3) that he ever requested a reasonable accommodation. Defendant also argues that plaintiff's claims relating to a pension should be rejected as a matter of law, contending that any rights plaintiff may have had as a probationary patrolman were automatically extinguished upon his termination, and further that the court should not exercise supplemental jurisdiction over the state law claims upon dismissal of the federal claims.

A. The Facts

Unless otherwise indicated, the facts set forth below are undisputed.

Gary Mazza was employed as a probationary police officer with the NYPD beginning October 15, 1990. He graduated from the Police Academy in April 1991, and entered upon duty as a police officer. Before he developed the colitis condition, plaintiff had been recorded as being out sick on six occasions, leading automatically to his designation by computer as a "chronic category B officer" because of the total number of illnesses and days of work missed within a year.*fn2

When plaintiff returned from vacation toward the end of April 1992, he began suffering diarrhea and bloody stool. On May 2, 1992, plaintiff collapsed and was taken to St. Vincent's Medical Center in Staten Island, where he was diagnosed and treated for severe ulcerative colitis. Plaintiff was admitted to St. Vincent's and treated three or four times between May 2 and June 14, 1992, and remained hospitalized for over thirty days in that period. (Pl.Exs.L, M, N). While hospitalized, plaintiff experienced numerous bloody bowel movements, averaging about eight per day during severe periods, and was described as dehydrated and "quite symptomatic" upon his second admission. (Pl. Ex.M). Colitis is inflammation of the colon, part of the gastrointestinal tract. In severe cases, the patient also can experience severe abdominal pain, cramps and "bowel urgency" (a feeling of having to make a bowel movement immediately) in addition to the symptoms described above. (Pl.Ex.P). When symptomatic, a person with colitis will need to relieve himself very suddenly, and can soil himself. During and after his hospitalizations, plaintiff was placed on numerous anti-inflammatory and other medications, including corticosteroids. (Pl.Exs.N, V). Plaintiff continued to be medicated in the following years, and apparently will have to take some medications for the rest of his life. In some cases, medication is not successful in controlling the inflammation and surgery to remove the affected area is required. (Pl.Ex. S, at 5).

Plaintiff further testified at his deposition (Tr. 292-93) that his condition improved "around the time of the termination" in February 1993 with the use of the medications. Thereafter, although he suffered flareups, including incidents where he soiled himself, and lacked energy some days, plaintiff's bowel movements and cramping decreased, and his condition did not affect his ability to bathe, go shopping, drive, learn, exercise, do recreational activity or work. (Id. at 292-97). Plaintiff maintained that he would have been able to work with only the accommodation of being allowed to use bathrooms as needed. (Id. at 300-02). Plaintiff's testimony in this respect differs significantly from the allegations of the complaint, which alleges that his condition rapidly improved after his hospital discharge on June 14, 1992, that in July he began requesting that he be restored to duty with reasonable accommodations in anticipation of his return to full duty, and that the symptoms of his disease had disappeared before he was terminated (Comp. ¶¶ 29-31).

Dr. Stanley Edelman, a NYPD District Surgeon, saw plaintiff on June 29, 1992. He reviewed the hospitalization records that showed that plaintiff had experienced severe episodes of bleeding ulcerative colitis, and that he had been placed on various medications. (Edelman Tr. 26). In subsequent biweekly visits, Dr. Edelman continued plaintiff on sick leave. (Id. at 29-31). After plaintiff's visit on August 28, 1992, Dr. Edelman recommended that plaintiff's employment be terminated, a recommendation that plaintiff claims without contradiction was concealed from him before his actual termination almost six months later, although Dr. Edelman continued to meet with plaintiff regularly to extend his sick leave. Dr. Edelman explained that, as of August 28, he had concluded that plaintiff was very sick, that he had a very serious and debilitating case of ulcerative colitis complicated by bleeding, multiple bowel movements and weight loss, and that he would eventually require major colon surgery. Dr. Edelman concluded that plaintiff's prognosis was poor. Plaintiff had failed to improve clinically despite multiple medications, including steroids, and Dr. Edelman felt that plaintiff was unable to work, would be unable to perform the functions of his job in the near future and that his future ability to be a full-duty police officer was in serious doubt. (Id. at 29-30, 34).

Dr. Edelman acknowledged that plaintiff would have been capable of doing clerical work if his condition had been under better control with medication, although even then plaintiff's ability to perform the full range of police work remained highly questionable. (Id. at 37, 41-42). Dr. Edelman testified that plaintiff had not stated that he was able to work as of the time that termination was recommended. (Id. at 32). Although Dr. Edelman did not recall ever having discussed with plaintiff the possibility of modifying his job duties to enable him to continue working as a police officer (id. at 47), the transcript of a conversation between plaintiff and Dr. Edelman in October 1992 shows that in fact, Dr. Edelman had suggested that plaintiff return to light duty or clerical work, perhaps at his local precinct so that he would not have to travel, but that plaintiff insisted he was completely unable to work. (Def.Ex.G). This conversation, and others by plaintiff with Dr. Edelman and another NYPD surgeon, Dr. Leah Dann, were secretly recorded by plaintiff, but plaintiff has not attached transcripts or produced tapes of any of those conversations in his response to the motion although he uses a few selected purported quotations from those conversations to claim that he was not treated fairly. The tapes were turned over to defendant in discovery. The transcript of the above conversation prepared by defendant even quotes Dr. Edelman referring to the obligation of the NYPD under the ADA to accommodate someone with colitis who was able to perform some work. Dr. Edelman stated, "I don't know why you're not able to — sit at a desk and answer a telephone." Plaintiff responded, "It's pretty obvious," but Dr. Edelman replied, "No, it isn't obvious." (Def.Ex.G, p. 5).

Notwithstanding this tape, plaintiff insists in general terms that, before February 1993, he had requested to be allowed to return to work with the accommodation of being allowed to work near a bathroom. (Mazza Aff. ¶ 51). He fails to identify to whom he communicated this request, or when. Instead, plaintiff's affidavit cites to paragraph 30 of the complaint, which as noted above, is refuted by his own deposition testimony, and also cites to pages of his deposition testimony that likewise do not identify any communications. Plaintiff's affidavit (at ¶ 52) then proceeds to quote from the affidavit he gave before the EEOC (Pl.Ex.T), which like the complaint is hearsay in this proceeding, and plaintiff does not now swear to its truth. Plaintiff asserted in his EEOC affidavit that, in October 1992, he had requested of Dr. Edelman that he be allowed to return to work with an accommodation, but was not allowed to — which is directly contrary to the recorded conversation described above. Plaintiff has not attempted in his papers to explain this recorded conversation and, significantly, plaintiff has not attempted to explain his inability to produce a recorded conversation that corroborates his claim although he "routinely tape recorded the conversations" with NYPD doctors without their knowledge. (Mazza Aff. ¶ 75). Plaintiff's EEOC affidavit also claimed that in December 1992, plaintiff's father had requested of NYPD Surgeon Dr. Leah Dann that plaintiff be allowed to return to work with accommodation, but plaintiff has not submitted any evidence of that alleged conversation in response to the summary judgment motion.

Plaintiff also alleges that he was lulled by the NYPD surgeons into believing that his job was not in jeopardy before he was terminated. He quotes Dr. Edelman and Dr. Dann on October 6, 1992, as assuring him that no one was interested in terminating him now, he should not worry, and that maybe if there was no improvement in six months they would have to "look hard" at his situation. (Id.). Plaintiff further quotes Dr. Edelman as telling plaintiff and plaintiff's father in a recorded telephone conversation on November 20 that plaintiff would be returning to work the next week, and Dr. Edelman would try to arrange for plaintiff to work at his local precinct. (Id. ¶ 76). Yet, plaintiff does not attempt to explain why he did not in fact return to work in the week after November 20. Plaintiff also does not assert that he had followup discussions with anyone when he did not return to work as Dr. Edelman had allegedly promised, as would have been expected if plaintiff wanted to and was able to return to work. Plaintiff does not submit transcripts of these conversations.

On December 10, 1992, Dr. Dann recommended that plaintiff be terminated. (Def.Ex.A). Her memorandum to the Supervising Chief Surgeon states that plaintiff had been out sick since May 2 with active inflammatory bowel disease, "has a biopsy proven IBD and has had cramps and bloody diarrhea (6-8 times/day) since then," and was on corticosteroids and 6-mercaptopurine (a drug that affects immune cells involved in inflamation, see Pl. Ex. S at 4-5). Dr. Dann recommended termination in view of plaintiff's "continued disease activity, with no possibility to be restored to full duty in the near future" after being out sick for seven months. Dr. Robert Thomas, the Supervising Chief Surgeon, concurred, noting plaintiff's "serious intestinal ...

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