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March 11, 2002


The opinion of the court was delivered by: David N. Hurd, United States District Judge.



Plaintiff Belinda Fountain ("Fountain" or "plaintiff") commenced this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(d)(4)(a) to challenge a policy promulgated by the defendant, New York State Department of Correctional Services' ("DOCS"), which requires her to provide a diagnosis of her medical condition each time she is absent from work. She also sues defendant Glenn S. Goord ("Goord") (collectively, "defendants") in his capacity as Commissioner of DOCS for causing the policy to be issued and enforced. Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff made a cross-motion for summary judgment. Oral argument was heard on July 27, 2001, in Albany, New York. Decision was reserved.


The following are the undisputed facts in this case, and where noted, the facts as alleged by each side. Fountain has been employed as a Corrections Officer by DOCS since 1989. Goord serves as Commissioner of DOCS. DOCS is an agency of the State of New York that maintains 71 correctional facilities throughout the state, in which over 69,000 inmates are confined. DOCS employs a workforce of over 30,000. The subject matter of the instant litigation is a DOCS' time and attendance policy regarding paid sick leave to its employees. This policy authorizes DOCS employees to use sick leave for personal illness, medical or dental appointments, and illness or death in an employee's immediate family.

This policy also provides that an employee returning to work after taking sick leave may be required to provide a medical certificate containing a diagnosis. "[A] supervisor may exercise the right to request certification for any absence charged to sick leave or family sick leave regardless of duration." (Mindel Aff. at Ex. B.) The doctor's certification must be on the doctor's letterhead and must contain: (1) a brief diagnosis of the condition treated; (2) a statement that the employee was unable to work during the absence; and (3) a prognosis including, where possible, the date of return to work or continued absence until next scheduled appointment date. It must also state that the employee is fit to perform their duties. In addition, the certificate must be signed by the doctor. The facility's "Time and Attendance Lieutenant" reviews the medical certification from employees who wish to charge their absence to sick leave to determine if they may do so. (Baxter Aff. at ¶ 16.)

There is a dispute as to whether the "brief" diagnosis may be specific or general. DOCS contends that the diagnosis may be general, such as "recovering from minor surgery." Plaintiff submitted her affidavit stating that in the past, certifications containing such general diagnoses were rejected by DOCS. When the medical certification is rejected, employees may be reprimanded and punished. Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in August of 1998. She received a Notice of Right to Sue letter on December 17, 1998, and this suit followed.


A. Summary Judgment Standard

A moving party is entitled to summary judgment "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the nonmoving party based on the evidence presented, the legitimate inferences that could be drawn from that evidence in favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining a motion for summary judgment, all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary judgment `may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).

B. Americans with Disabilities Act

The ADA is designed, in part, to protect employees from discrimination based on disabilities or perceived disabilities. Toward that end, the ADA prohibits employers from inquiring into whether the employee has a disability and the nature or severity of such a disability. See 42 U.S.C. § 12112(d)(4)(A). It also restricts the employer's ability to conduct medical examinations and to conduct inquiries that may uncover employees' disabilities or perceived disabilities. Id.

Under this provision, a prohibited inquiry in and of itself will be enough to assert a cause of action. See id. at (d)(4)(A). The plaintiff need not establish a disability in order to state a claim for prohibited inquiry under the ADA. Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 520 (3d Cir. 2001). See Griffin v. Steeltek, Inc. 160 F.3d 591, 594 (10th Cir. 1998) (disability not required for prohibited inquiry plaintiff); accord Cossette v. Minnesota Power & Light, 188 F.3d 964, 969 (8th Cir. 1999).

In order to determine whether an inquiry is of the type prohibited by the ADA, it is necessary to determine whether the inquiry would be likely to require employees to disclose their disabilities or perceived disabilities. See Roe v. Cheyenne Mt. Conf. Resort, 124 F.3d 1221, 1237 (10th Cir. 1997) (affirming district court's finding that requiring employees to disclose their prescription drug medication is a ...

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