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July 16, 2001


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:


Denise Felix filed a pro se Complaint dated August 11, 1998, alleging that her former employer, the New York City Transit Authority ("NYCTA"), discriminated against her in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. In particular, Felix alleged that the NYCTA unlawfully terminated her employment and failed to reasonably accommodate her disability. On July 15, 1999, the Civil Rights Clinic of Washington Square Legal Services, Inc. appeared on her behalf.

On July 28, 2000, the NYCTA moved for summary judgment pursuant to Federal Rule of Civil procedure 56(c). However, because Denise Felix died on July 27, 2000, the motion was withdrawn and the case was placed on suspense. Letters of administration were issued appointing Naomi Felix and Irene Cooper administrators of the estate of Denise Felix. A Suggestion of Death was filed by Irene Cooper, Felix's mother, on March 16, 2001. On April 9, 2001, the case was restored to the active docket and the caption was changed to reflect the administrators as plaintiffs. The NYCTA re-filed its motion for summary judgment on May 1, 2001 seeking to dismiss the Complaint in its entirety. For reasons that follow, the NYCTA's motion is granted.


A. Felix's Employment with the NYCTA

Felix was hired by the NYCTA in 1994 as a Railroad Clerk in its Department of Stations ("Stations Department"). See 7/28/00 Declaration of Paulette Thompson ("Thompson Decl."), defendant's attorney, ¶ 2. Railroad Clerks work in token booths, located in the subways, where they sell tokens, commuter passes and fare cards as well as provide information to passengers. See id. ¶ 9. In 1996, the Stations Department employed approximately 3,417 Railroad Clerks. Although Railroad Clerks work primarily in underground subway booths, approximately 50 Railroad Clerks work in above-ground offices of the Stations Department. See Id. Felix worked as an "extra" Railroad Clerk, relieving other Railroad Clerks who were away from their positions. See id. ¶ 3.

B. The Firebombing Incident

On November 26, 1995, while Felix was in a subway on her way to relieve a Railroad Clerk at the Kingston and Throop subway station, she was informed of a firebombing incident at that station. See Id. The token booth on the southbound platform had been firebombed and the Railroad Clerk inside the booth was killed. See Id. Upon seeing the smoke-filled platform and learning what happened, Felix became so distraught that she had to be taken to the emergency room at Kings County Hospital. She was released the same day. The following day, Felix was directed to report to the NYCTA's Medical Assessment Center ("MAC") so that she could be evaluated by NYCTA physicians. See Id.

C. Subsequent Medical Determinations

Felix first visited the MAC on November 27, 1995. See id. ¶ 4. At that time it was determined that Felix was medically unable to work at all and she was given a "No Work" status. This status changed after Felix's second visit to the MAC on November 30, 1995, at which time she was given a temporary status of "Restricted Work." See Id. If a MAC physician designates an employee as "restricted work" status, she is required to fill out a Restricted Work Assessment form indicating the nature of the restriction. See Deposition of Dr. Florence Mitchell ("Mitchell Dep."), Ex. 5 to Plaintiffs' Appendix to Statement Pursuant to Rule 56.1 ("Pl. App."), at 15. The notation on the November 30, 1995 Restricted Work Assessment form indicated that Felix was not to work alone in a booth and was not to work at the Kingston and Throop token booth. See 11/30/95 Restricted Work Assessment, Ex. O to Thompson Decl., at 2b. Given these restrictions and the work it had available for Railroad Clerks, the Stations Department gave Felix a "No Work Available" status. See Thompson Decl. ¶ 4.

From December 7, 1995 through June 28, 1996, Felix visited the MAC nine times. See Id. Medically, Felix remained on "Restricted Work, temporary" status with the repeated notation that Felix could do no subway work but could do clerical work if available. See, e.g., 1/11/96 and 6/28/96 Restricted Work Assessments, Ex. O to Thompson Decl., at 5a, 12a. Felix was given "No Work Available" status by the Stations Department which claimed there was no restricted work available for Railroad Clerks that was not located in the subway. See Thompson Decl. ¶ 4. Felix remained medically on "Restricted Work, temporary" status and departmentally on "No Work Available" status for approximately nine months. See id.

Then, on August 15, 1996, Felix returned to the MAC and was given "No Work, temporary" status by Dr. Mitchell who previously assessed Felix on December 29, 1995 and January 11, 1996. See 12/29/95 and 1/11/96 Progress Reports, Ex. O to Thompson Decl, at 4, 5. A medical "No Work" status means that the NYCTA cannot assign that particular employee any work within the transit system. See Thompson Decl. ¶ 4. In her August 15, 1996 Progress Report, Dr. Mitchell stated: "I do not believe Ms. Felix can perform any work at present." See 8/16/96 Progress Report, Ex. O to Thompson Decl., at 13. Dr. Mitchell reached the same conclusion on October 18, 1996 (not ready to return to work) and November 22, 1996 ("probably still unable to perform any useful work at present"). See 10/18/96 and 11/22/96 Progress Reports, Ex. O to Thompson Decl., at 14, 15. Dr. Mitchell observed that Felix was unable to perform the activities of daily life because of depression and psychomotor retardation. See Mitchell Dep. at 58.

During this period, the five NYCTA physicians who examined Felix prepared Progress Reports detailing their assessment of her condition after each visit. In the subjective section of these reports, the physicians noted Felix's sleep disturbance. For example, the December 7, 1995 Report indicates that Felix had a disturbance of sleep and eating. See 12/27/95 Progress Report, Ex. O to Thompson Decl., at 3. Reports from January 11, 1996 through April 6, 1996 consistently note that Felix had nightmares and could not sleep. See 1/11/96, 2/2/96, 3/1/96, 3/29/96 and 4/26/96 Progress Reports, Ex. O to Thompson Decl., at 5, 6, 7, 8, and 9. Earlier reports do not specifically mention nightmares but do note Felix's sleep disturbances. See 11/27/95, 11/30/95 and 12/7/95 Progress Reports, Ex. O to Thompson Decl., at 1, 2 and 3. Apparently, Felix's sleep problem progressively worsened as evidenced from later reports. The May 10, 1996 Report indicates that Felix still had insomnia and "can't sleep at all since beginning Diazepam." See 5/10/96 Progress Report, Ex. O to Thompson Decl., at 10. Furthermore, the May 31, 1996 Report indicates that Felix was getting four hours of sleep per night. See 5/31/96 Progress Report, Ex. O to Thompson Decl., at 11. Finally, the subjective portion of the June 28, 1996 Report states that Felix hadn't slept for two weeks while the objective portion of that report indicates that Felix was only sleeping one to two hours per night. See 6/28/96 Progress Report, Ex. O to Thompson Decl., at 12.

On December 5, 1995, Felix began seeing a psychiatrist, Dr. Kenneth Schwartz. See 12/5/95 Neuropsychiatric Narrative Report, Ex. C to 7/27/00 Declaration of Richard Schoolman, defendant's attorney ("Schoolman Decl.), at 1. Dr. Schwartz diagnosed Felix as having an adjustment disorder with major depression which was causally related to the firebombing incident. See id. at 2. Dr. Schwartz further opined that Felix "has a total disability" and "cannot work or function socially." See id. at 3.

Dr. Schwartz's initial diagnosis of complete incapacitation changed shortly thereafter. During the period from March 27, 1996 through November 19, 1996, Dr. Schwartz diagnosed Felix as having an adjustment disorder. See Information Relating to Employee Illness or Accident Forms, Ex. 27 to Pl. App., passim. The date Felix became unable to work was consistently marked "11/26/95" but the only limitation on Felix's ability to do light work was always "no subway work." See id. Dr. Schwartz repeatedly noted that Felix could not perform full work but that she could do light work outside the subway. See id.

D. Termination

Felix was terminated on November 26, 1996, pursuant to Civil Service Law § 71, which authorizes the NYCTA to terminate a civil service employee who, for medical reasons, is unable to return to work after a year's absence. See Thompson Decl. ¶ 5. Felix was informed of the possibility of termination in letters dated February 21 and September 26, 1996. See 2/21/96 and 9/26/96 Letters to Denise Felix from Charles E. Glasgow, Director of Human Resources, Ex. P to Thompson Decl. In the February letter, the NYCTA stated that it was considering Felix's case for "restricted duty assignment, reclassification, retirement or termination." Id. The September letter stated that Felix had been unable to perform the full duties of her position for a period of ten months. See id. In the same letter, the NYCTA then informed Felix of its intention to terminate her employment effective November 26, 1996. See id. Neither letter provided any information about the right to challenge a medical "No Work" determination.*fn1 See Plaintiffs' Statement Pursuant to Fed.R.Civ.P. 56.1 ("Pl. 56.1") ¶ 6 at 18.*fn2 Felix was terminated by a letter dated November 26, 1996 for having failed to perform the full duties of her position for a consecutive one-year period. See 11/26/96 Letter to Denise Felix from Charles E. Glasgow, Ex. P to Thompson Decl.

E. Reasonable Accommodation

The NYCTA is subject to the Rules and Regulations of the New York City Department of Administrative Citywide Services ("DCAS") which implements the New York Civil Service Law. See Pl. 56.1 ¶ 3 at 2. NYCTA employees obtain competitive civil service positions, such as Railroad Clerk, by taking a test for that particular civil service title. See id. The term "reassignment" means transferring an employee to a different position in the same civil service title. See id. ¶ 16 at 6. The NYCTA is free to transfer an employee from one job to another in the same civil service title. See id. ¶ 4 at 2. Reclassification, on the other hand, is the process by which an employee's civil service title is changed so that the employee may be transferred to a position in a different civil service title without taking the civil service exam for that title. See Id. ¶ 16 at 6. The NYCTA must obtain the approval of DCAS before reclassifying an employee to a position in a different civil service title. See id. ¶ 4 at 2.

Before her termination, Felix and her mother, Irene Cooper, wrote the NYCTA requesting reasonable accommodation under the ADA. See 8/13/96 Letter to Charles E. Glasgow from Denise Felix and Irene Cooper, Ex. T to Thompson Decl. In response, Chief Stations Officer Carol Meltzer informed Ms. Cooper that no reasonable accommodation was available as Felix had been designated "No Work" at her previous MAC visit. See 8/22/96 Letter to Irene Cooper from Carol E. Meltzer, Chief Station Officer, Ex. U to Thompson Decl. Plaintiffs argue that both before and after this "No Work" determination was made, reasonable accommodation was available to Felix in the form of reassignment or reclassification.

The reassignment urged by plaintiffs would have transferred Felix from a subway Railroad Clerk to an office duty Railroad Clerk. See Pl. 56.1 ¶ 16 at 6. While office duty Railroad Clerks are selected based on their clerical abilities and work experience, the office positions are not considered promotions. See Id. ¶ 14 at 5. To notify Railroad Clerks of these office positions, the NYCTA posts memos soliciting responses from interested employees. See Id. ¶ 15 at 6. Sometimes memos are not posted and instead the hiring manager fills vacancies by looking through a file of previously submitted resumes. See id.

An office duty Railroad Clerk must be fully capable of returning to work in the subways during emergencies or when operational needs require. See Thompson Decl. ¶ 9. Plaintiffs concede that the NYCTA occasionally requests office Railroad Clerks to work in the subways on an as-needed basis. See Pl. 56.1 ¶ 2b at 10. Such short-term "field assignments" are rare, usually occurring only several times per year. See 2/3/00 Deposition of Eller Quinn ("Quinn Dep.), an office Railroad Clerk, Ex. W to Thompson Decl., at 25 (one or two days a year); see also 2/3/00 Deposition of Steven G. Larrymore, a NYCTA employee, Ex. BB to Thompson Decl., at 25 (two to three times a year).

According to the NYCTA, there were no vacancies for office duty Railroad Clerks during the period from November 26, 1995 through November 26, 1996. See Thompson Decl. ¶ 10. Although NYCTA management changed or eliminated some office positions and reassigned personnel, it claims that these changes did not create vacancies. See id. Plaintiffs dispute this contention by pointing to three vacancies in office positions that occurred during this period. See Pl. 56.1 ¶ 2b at 11. One such vacancy arguably occurred in February 1996, when Brenda Marshall was promoted and left her position in the restricted duty unit of the Stations Department. See id. Marshall's position was given to Eller Quinn in March 1996, after her return from a maternity leave taken in November 1995. See id. According to the NYCTA, this personnel change did not create a vacancy as Quinn was already working in an office prior to her maternity leave.*fn3 See Thompson Decl. ¶ 10. In addition, plaintiff's review of the NYCTA's Job Book Supplement revealed what appears to be two other vacancies: one in the Customer Complaints office given to Alberta Cheney on July 7, 1996; and another in the Station Command Office given to Patricia Beckford on July 21, 1996. See Pl. 56.1 ¶ 2b at 12. The NYCTA conceded that Beckford had an office assignment as a night typist during the second half of 1996. See 4/26/01 Declaration of Charles E. Glasgow, Director of NYCTA's Office of Labor Relations, ¶ 6.

The other way in which the NYCTA could have arguably made reasonable accommodation was through reclassification. The NYCTA's restricted duty policy makes reclassification possible in two limited circumstances: (1) where an employee is given a "Restricted Work, permanent" medical status; and (2) where an employee is given a "Restricted Work, temporary" medical status and has remained in that status for ten consecutive months. See Thompson Decl. ¶ 6. Here, Felix was not eligible for reclassification under the NYCTA's restricted duty policy — by September 26, 1996, the time Felix would have otherwise hit her ten-month mark, she had already been on "No Work" status for approximately six weeks. See id. Plaintiffs argue that the NYCTA's ten-month policy is more restrictive than necessary as the DCAS permits any employee to be reclassified at any time and for any reason if she is qualified for the new job and the two positions are at the same grade level. See Pl. 56.1 ¶ 18 at 7. Plaintiffs also dispute the propriety of Felix's "No Work" status determination made on August 15, 1996. See id. ¶ 5 at 16-17.

Even if Felix had become eligible for reclassification under NYCTA policy, the NYCTA's interpretation of its restricted duty policy would have prevented reclassifying Felix given her medical restrictions. It is the NYCTA's practice to reclassify a Railroad Clerk to the titles of Transit Property Protection Agent ("TPPA") and Cleaner, if there is a vacancy in those titles. See Thompson Decl. ¶ 7. This practice is the result of previous rejected attempts by the NYCTA to reclassify an "operating title" such as Railroad Clerk to a "non-operating title" such as clerical associate. See id. The parties agree that there were no vacancies in the TPPA position and that the vacancies in the Cleaner position were unsuitable because they were located in the subways. See Pl. 56.1 ¶ 8 at 19. Plaintiffs point to a vacancy in the civil service title Clerical Associate 1A that became available August 23, 1996. See 8/23/96 Job Vacancy Notice, Ex. 33 to Pl. App. While this position would not have been available to Felix under NYCTA practice, the DCAS Director of Classification testified that DCAS would have permitted a Railroad Clerk to be reclassified to a clerical position if she was otherwise qualified. See Deposition of Sherry Schultz ("Schultz Dep."), DCAS Director of Classification, Ex. 4 to Pl. App., at 127-28.

F. Social Security Benefits

On February 28, 1997, approximately three months after Felix was terminated, she applied for Social Security Disability Insurance ("SSDI") benefits. See 2/28/97 Application for Disability Insurance Benefits, Ex. B to Schoolman Decl. The typewritten application form, signed by Felix on March 7, 1997, included the following statement: "I became unable to work because of my disabling condition on November 26, 1995." See id. at 1. At her deposition, Felix testified that she had applied for SSDI benefits over the telephone. See Felix Dep. at 50. Felix further testified that she never told the Social Security Administration ("SSA") that she was unable to work, only that she was unable to work in the subways. See id. at 55. Felix believed that she was entitled to SSDI benefits even though she claimed she could do non-subway work because those benefits were "a temporary check [for] [a] temporary disability." Id. at 56.

On June 2, 1997, the SSA denied Felix's application for SSDI benefits. See 6/2/97 Notice of Disapproved Claim, Ex. 20 to Pl. App. The SSA informed Felix that it had based its decision on the December 5, 1995 Report from Felix's treating physician, Dr. Schwartz, as no other reports were available. See 5/20/97 Explanation of Determination, Ex. 20 to Pl. App. Felix then filed a request for reconsideration, dated July 29, 1997, wherein she stated that she was disabled and unable to work and that her condition had worsened. See 7/29/97 Request for Reconsideration, Ex. 20 to Pl. App.

After receiving Felix's request for reconsideration, the SSA re-opened her case and obtained more medical reports describing Felix's condition. One such report was an Addendum to Psychiatric Report, dated April 25, 1997, prepared by Dr. Schwartz. See 4/25/97 Addendum to Psychiatric Report, Ex. D to Schoolman Decl. In his Addendum, Dr. Schwartz remarked: "The patient still is unable to work and needs further treatment." See Id. Another report from Dr. Schwartz was a letter dated December 12, 1997, where he stated that "[t]he patient is unable to work." See 12/12/97 Letter from Dr. Schwartz, Ex. E to Schoolman Decl. The SSA also contacted Dr. Schwartz by telephone on March 6, 1998. See 3/6/98 Report of Contact, Ex. G. to Schoolman Decl. Dr. Schwartz allegedly told an SSA employee that Felix has been disabled since he had been treating her and will continue to be disabled for at least one year. See id.

Felix was also examined by an outside physician. On February 25, 1998, Dr. Gianelli, a consulting psychiatrist for the SSA, described Felix as suffering from "extreme psychomotor retardation." Report of Dr. Gianelli, Ex. F to Schoolman Decl., at 1. Dr. Gianelli concluded that Felix was unable to perform the activities of daily living without assistance and that she was "unable to work at this time." Id. at 2. On March 20, 1998, the SSA reversed its denial and deemed Felix disabled for SSDI purposes as of November 26, 1995. See 3/20/98 Disability Determination and Transmittal, Ex. H to Schoolman Decl. ...

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